Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-26-00319-CV IN THE INTEREST OF A.G.J., a Child From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2024-PA-01314 Honorable Raul Perales, Associate Judge Presiding Opinion by: Rebeca C. Martinez, Chief Justice Sitting: Rebeca C. Martinez, Chief Justice Lori Massey Brissette, Justice H. Todd McCray, Justice Delivered and Filed: September 16, 2026 AFFIRMED This appeal arises from the trial court’s order terminating the parental rights of appellant (“Father”), the biological father of A.G.J. 1 In two issues, Father argues that the evidence is legally and factually insufficient to support the trial court’s findings that: (1) he engaged in conduct described by Texas Family Code section 161.001(b)(1)(E), and (2) termination of his parental rights is in A.G.J.’s best interest. We affirm. 1 To protect the identity of the minor child in this appeal, we refer him by his initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-26-00319-CV I. BACKGROUND In August 2024, the Texas Department of Family and Protective Services (“the Department”) initiated the underlying proceeding by filing a petition to terminate Father’s parental rights to A.G.J. The Department’s investigation was prompted by a July 18, 2024 referral “regarding the neglectful supervision” of A.G.J., alleging that his mother (“Mother”) 2 was using drugs. The Department received two additional referrals on August 13, 2024. The first referral alleged “physical neglect” of A.G.J. by Father, and second referral alleged “neglectful supervision” of A.G.J. by Father. Father and A.G.J. were observed sleeping at a bus stop. A.G.J.’s physical injuries — bug bites, heat rash, diaper rash, and large nickel size sores on his back — required immediate attention, and Emergency Medical Services took A.G.J. to the hospital for treatment. While at the hospital, Father’s “presentation was concerning.” The Department suspected Father was using drugs. In September 2024, the Department was appointed temporary managing conservator of A.G.J., and Father was appointed possessory conservator. A family service plan was adopted with the goal of Father securing and maintaining stable employment and shelter. The plan required Father to complete a psychological or psychiatric evaluation, counseling, parenting classes, and drug and alcohol assessments. Father did not complete any portion of the plan before February 13, 2025, when he was detained at the Eden Detention Center for transporting undocumented people. A bench trial was held on April 13, 2026. 3 At that time, Father was serving an 18-month sentence and A.G.J. was living in foster care. The trial court heard testimony from Father, Mother, 2 Mother voluntarily relinquished her parental rights and is not a party in this appeal. 3 The first bench trial, held on November 7, 2025, resulted in a mistral. -2- 04-26-00319-CV Department caseworker, A.G.J.’s foster care manager, and Elizabeth Ramos, the person Father requested A.G.J. be placed with if his parental rights were terminated. At the bench trial’s conclusion, the trial court found by clear and convincing evidence that Father had: (1) engaged in conduct or knowingly placed A.G.J. with persons who engaged in conduct which endangers the physical or emotional well-being of A.G.J. (subsection (1)(E) endangerment by conduct); (2) constructively abandoned A.G.J. (subsection (1)(N) constructive abandonment); and (3) knowingly engaged in criminal conduct that has resulted in his conviction, confinement or imprisonment, and inability to care for A.G.J for not less than two years from the date of the filing of the petition (subsection (1)(P) 4 criminal conviction). TEX. FAM. CODE ANN. §§ 161.001(b)(1)(E), (N), (P). Father timely appealed. I. UNCHALLENGED GROUNDS FOR TERMINATION When a trial court terminates parental rights based on multiple predicate grounds and a parent only challenges some on appeal, leaving others uncontested, we accept the unchallenged grounds as valid. In re A.V., 113 S.W.3d 355, 361–62 (Tex. 2003). Here, Father does not challenge the (N) and (P) findings. TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (P). Accordingly, we must accept the unchallenged findings as true. See In re S.J.R.-Z., 537 S.W.3d 677, 682 (Tex. App.—San Antonio 2017, pet. denied). Nevertheless, because the “collateral consequences of terminating parental rights under [S]ection 161.001(b)(1)(D) or (E) are significant,” In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam), we will consider the legal and factual sufficiency of the evidence to terminate Father’s parental rights pursuant to subsection (E) of Texas Family Code Section 161.001(b)(1). Id. at 237. 4 The order of termination lists criminal conviction as subsection (1)(Q). -3- 04-26-00319-CV II. STANDARD OF REVIEW A parent-child relationship may be terminated, pursuant to Section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in a child’s best interest. TEX. FAM. CODE ANN. § 161.001(b)(1), (2). Clear and convincing evidence requires “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. We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266–67 (Tex. 2002). In reviewing the legal sufficiency of the evidence, we must “look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” Id. at 266. “[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. In reviewing the factual sufficiency of the evidence, we “must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” Id. “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.” Id. II. ENDANGERMENT In Father’s first issue, he argues that the evidence is legally and factually insufficient to support the trial court’s subsection (E) endangerment by conduct finding. -4- 04-26-00319-CV A. Applicable Law Subsection 161.001(b)(1)(E) allows a trial court to terminate a parent’s rights if the court finds by 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 well- being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Endangerment means to expose to loss or injury, to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). Under subsection (E), the cause of the endangerment must be the parent’s conduct and must be the result of a conscious course of conduct rather than a single act or omission. In re N.M.R., No. 04-22-00032-CV, 2022 WL 3640223, at *3 (Tex. App.—San Antonio Aug. 24, 2022, pet. denied) (mem. op.) (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)). B. Analysis Father argues the Department only removed A.G.J. because he was unwilling to go to a shelter, and the Department presented no evidence showing that he endangered A.G.J. The Department argues Father’s instability and lack of housing, incarceration, and its concern about Father’s drug use amount to sufficient evidence to terminate Father’s parental rights under subsection (E). Father was unemployed and ended up at the bus stop because he did not have a place to live. A parent’s inability to financially provide for their child may constitute endangering conduct. See In re A.N., No. 02-14-00206-CV, 2014 WL 5791573, at *18 (Tex. App.—Fort Worth Nov. 6, 2014, no pet.) (mem. op.). Alone, homelessness may not be enough to support termination — a pattern of instability is the touchstone. In re P.M., No. 02-23-00365-CV, 2024 WL 976819, at *6 (Tex. App.—Fort Worth Mar. 7, 2024, pet. denied) (mem. op.). While A.G.J. was in the hospital, -5- 04-26-00319-CV the Department gave Father resources for local housing and shelters, yet Father stated he would not stay at a shelter because he “felt like shelters are a prison” and that he and A.G.J. would return to the streets. While this case was pending, Father was incarcerated and did not state any employment or housing prospects upon being released from prison, except that he anticipated being under supervised release and to be placed in a half-way house. A.G.J.’s condition required immediate medical attention. A parent’s failure to provide appropriate medical care may constitute endangering conduct. In re J.I.G., No. 01-18-00023-CV, 2018 WL 3233874, at *8 (Tex. App.—Houston [1st Dist.] Jul. 3, 2018, no pet.) (mem. op.). This is true even if the parent did not cause the need for medical treatment. Smith v. Tex. Dep’t of Fam. & Protective Servs., No. 01-09-00173-CV, 2009 WL 4359267, at *7 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.). Viewing all the evidence in the light most favorable to the trial court’s judgment and recognizing that the factfinder is the sole arbiter of the witnesses’ credibility and demeanor, we conclude a reasonable factfinder could have formed a firm belief or conviction that Father “engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endangers the physical or emotional well-being of the child[ren].” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Thus, the evidence is legally sufficient to support this finding. Further, after considering the entire record, including any disputed or contrary evidence, we conclude the evidence is factually sufficient to support the trial court’s termination under subsection (E) of the Texas Family Code. We overrule Father’s first issue. -6- 04-26-00319-CV III. BEST INTEREST A. Applicable Law It is the burden of the party seeking termination to establish that termination is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The set of factors is not exhaustive, and no single factor is necessarily dispositive of the issue. Id. at 372; In re A.B., 269 S.W.3d 120, 126 (Tex. App.—El Paso 2008, no pet.). The Holley factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 372. We recognize 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) (per curiam). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a). Thus, we also consider the factors set forth in section 263.307(b) of the Family Code. Id. § 263.307(b). Evidence that proves one or more statutory grounds for termination may be probative of a child’s best interest, but it does not relieve the State of its burden to prove best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). In conducting a best interest analysis, we consider direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.— -7- 04-26-00319-CV San Antonio 2013, pet. denied). In analyzing the evidence within the Holley framework, evidence of each Holley factor is not required before a court may find that termination is in a child’s best interest. In re C.H., 89 S.W.3d at 27. B. Analysis i. The Desires of the Child Father argues “[i]nsufficient evidence was presented regarding the child’s preference regarding termination of parental rights or if future contact with Appellant was requested or desired.” A.G.J., four years old at the time of trial, did not testify and was too young to make his desires known. In such instances, courts have held that a fact finder may consider whether the child has bonded with and cared for by the foster family, and has spent minimal time with the parent. In re A.F.C., No. 04-17-00080-CV, 2017 WL 3159447, at *3 (Tex. App.—San Antonio July 26, 2016, no pet.) (mem. op.). A.G.J. was two years old when the Department was appointed his temporary managing conservator and “does not fully remember who his parents are.” The Department caseworker testified that A.G.J. is “doing amazing” and is “just a happy, happy, healthy little boy[.]” A.G.J.’s foster care manager testified that he is happy and bonded to his foster parents. Thus, the first Holly factor weighs in favor of termination. ii. The Emotional and Physical Needs of the Child Now and in the Future Father concedes that he “was not able to meet [A.G.J.’s] physical and emotional needs.” Providing for A.G.J.’s physical and emotion needs is of paramount importance. See In re C.B., No. 02-22-00212-CV, 2022 WL 15076123, at *3 (Tex. App.—Fort Worth Oct. 27, 2022, pet. denied) (mem. op.). Thus, the second Holly factor weighs in favor of termination. -8- 04-26-00319-CV iii. The Emotional and Physical Danger to the Child Now and in the Future, Parental Abilities, Programs Available, Plans for the Child, and the Stability of the Home or Proposed Placement Before being incarcerated, Father declined the Department’s help in finding stable housing. Father asked the trial court to “leave [A.G.J.] where he is at let him continue to do good there and allow [Father] the time to get out and get stable and get [A.G.J.] back[.]” Leaving A.G.J. in the managing conservatorship puts him at risk of more uncertainty and instability. See In re D.D., No. 02-17-00368-CV, 2018 WL 1630708, at *11 (Tex. App.—Fort Worth Apr. 5, 2018, no pet.) (per curiam) (mem. op.) (“Mother and Father wanted. . .to. . .leave [their child] in the managing conservatorship of the [Department],” but “that decision would have left [their child] with more uncertainty and instability because he could be moved around from foster home to foster home until he aged out of the system without having ‘a chance to heal’ or ‘the safety of a forever family.’”). Father testified that upon being released from prison, he anticipated being placed in a half way house, planned to adhere to the terms of supervised release, get a job, find a home, and gain stability in order to be reunited with A.G.J. The Department’s goal was adoption by the current foster parents, who are willing to adopt A.G.J. “If [Father’s] parental rights were terminated, whether [he] continued to have employment and a stable home would not be concerns that affected [A.G.J.’s] safety and stability.” See In re C.W., No. 02-21-00252-CV, 2022 WL 123221, at *11 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.). Mother testified that, to her knowledge, A.G.J.’s current placement met all of his needs. At the start of his current foster home placement, A.G.J. had aggressive behaviors and anger issues, such as hitting and biting other children, that resulted in him getting kicked out of day care. His -9- 04-26-00319-CV foster mother stayed home with him “for a couple of months so that she could just have that one- on-one time with him to bond with him; to make sure that his behavior got under control when he started school.” A.G.J.’s foster care manager testified that A.G.J.’s behavior improved, and that “he likes his consistency and his structure and his routine.” A.G.J. receives weekly therapy and is current on his medical and dental appointments. Father requested A.G.J. be placed in the care of his friend’s mother, Elizabeth Ramos, or either of his brothers, should his parental rights be terminated. The Department conducted a home study on Ramos and did not approve her as a proper placement because her son, who resides with her, has a criminal history and was on probation. Ramos testified that she was employed at Goodwill and could financially support A.G.J., would be willing to find alternative housing for her son — and that she had never met A.G.J. Despite the Department’s earlier request for family placement options, Father did not provide the Department with any names. On the eve of trial, Father provided the Department with his brothers’ contact information. The Department reached out to one brother on the morning of trial but was unable to make contact. Mother testified that she did not know any of the individuals Father asked A.G.J. to be placed with. Thus, the third, fourth, fifth, sixth, and seventh Holly factors weigh in favor of termination. iv. The Parent’s Acts or Omissions and any Excuse for the Parent’s Acts or Omissions Father testified that he did not complete any portion of the parenting plan prior to being incarcerated — despite having knowledge that it was necessary to be reunified with A.G.J. His excuse for his lack of engagement was that he could not “get it together” and his “whole world crashed in” after A.G.J. was taken from him. To Father’s credit, while incarcerated, he completed several classes including substance abuse, anger management and self-improvement. Father argues that this compliance should allow - 10 - 04-26-00319-CV his parental rights to remain intact as a possessory conservator, giving him more time to find stable housing. Father testified that “incarceration allowed [him] the time to gain clarity” and realize what was important. The Department argues Father’s partial compliance is negated by his failure to complete any portion of it before being incarcerated. While it is commendable that Father took classes while serving his sentence, the fact remains that he failed to complete any portion of the plan prior, though he had months 5 to do so. Furthermore, Father’s rehabilitation does not absolve him of his past choices such that a factfinder cannot consider them. See In re J.F.-G., 627 S.W.3d 304, 317 (Tex. 2021); see also In re J.F.-G., 612 S.W.3d 373, 384 (Tex. App.—Waco 2020) (mem. op.), aff’d, 627 S.W.3d 304 (Tex. 2021). Due to his incarceration, Father had not seen A.G.J. in 14 months. The record is not clear on Father’s visitation and communication with A.G.J. prior to being incarcerated. Father testified that he missed scheduled visits because his phone had been stolen and he struggled after A.G.J. had been removed. Father further testified that once he was incarcerated, he wrote A.G.J. weekly for fourteen months and attempted to contact A.G.J. by phone and video call, and spoke to him by phone once before trial. Prior to that call, Father had not visited with A.G.J. in over a year. Father argues that his pursuit of “a significant relationship with [A.G.J.] through, at the very least, written correspondence” weighs against the trial court’s best interest findings. Father relies on In re D.S.A., 113 S.W.3d 567, 574 (Tex. App.—Amarillo 2003, no pet.), and In the Interest of G.M.M., 721 S.W.3d 679, 684 (Tex. App.—San Antonio 2025, no pet.) in support of his proposition. Both are unpersuasive because they apply to predicate ground (N), abandonment. Thus, the eighth and ninth Holly factors weigh in favor of termination. 5 Father was detained in February 2025, but A.G.J. had been in the Department’s care since August 2024. - 11 - 04-26-00319-CV v. Holding The Department removed A.G.J. from an unstable environment that threatened his health. For months, Father refused to address his unemployment or homelessness that led to A.G.J.’s removal, and Father’s decisions resulted in his incarceration. While Father made some effort while incarcerated, that effort was belated, and many doubts about whether he could provide A.G.J. stability or had support from family or friends to assist him upon his release remained. After viewing all the evidence in the light most favorable to the best interest finding, we conclude that the trial court could have formed a firm belief or conviction that termination of Father’s parental rights was in A.G.J.’s best interest. See In re J.F.C., 96 S.W.3d at 266. All of the Holley factors, weigh in favor of termination. See In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.—San Antonio Jul. 25, 2018, pet. denied) (mem. op.) (“Evidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child’s best interest — especially when the evidence shows the parental relationship endangered the child’s safety.”). We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court’s best- interest finding or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in A.G.J.’s best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court’s best interest finding. See TEX. FAM. CODE ANN. § 161.001(b)(2). We overrule Father’s second issue. IV. CONCLUSION We affirm the trial court’s parental termination order. Rebeca C. Martinez, Chief Justice - 12 -