TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00238-CV
M. D., Jr., Appellant
v.
Texas Department of Family and Protective Services, P.B., and B.B., Appellees
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-24-007309, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Following a bench trial, the district court terminated the parental rights of M.D.,
Jr. (Father) and C.A. (Mother) to their daughter, A.A. (“Ashley”), who was approximately eight
years old at the time of trial.1 In eight issues on appeal, Father asserts that: (1) the district court
abused its discretion by admitting into evidence Mother’s statements relating to an alleged
assault of her by Father; (2) the district court abused its discretion by admitting into evidence
law-enforcement records and a 911 call relating to the alleged assault; (3) the district court
abused its discretion by admitting and considering evidence of events that occurred before an
earlier order in the case; (4) the evidence is insufficient to support the district court’s finding that
Father placed Ashley in endangering conditions or surroundings; (5) the evidence is insufficient
to support the district court’s finding that Father engaged in endangering conduct; (6) the
evidence is insufficient to support the district court’s finding that Father constructively
1
For the child’s privacy, we refer to her using a pseudonym and to her parents by their biological relationship to her. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. abandoned Ashley; (7) the evidence is insufficient to support the district court’s finding that
Father has a mental or emotional illness or a mental deficiency that renders him unable to
provide for Ashley’s needs; and (8) the evidence is insufficient to support the district court’s
finding that the Department made reasonable efforts to return Ashley to Father prior to trial.
Mother has not appealed the district court’s order. We will affirm the district court’s order of
termination.
BACKGROUND
The Texas Department of Family and Protective Services (the Department) first
became involved with Father and Mother in 2018, approximately three months after Ashley was
born, following allegations that Father and Mother had neglected Ashley, who had been
diagnosed with Down Syndrome shortly after birth. In April 2018, Ashley was placed in the care
of B.B. (Foster Mother) and P.B. (Foster Father), where she remains today.
The Department sought termination of Father’s and Mother’s parental rights and,
following a bench trial in 2020, the district court terminated their parental rights. On appeal by
both Mother and Father, this Court reversed the district court’s termination order, concluding
that the evidence was legally insufficient as to some of the predicate grounds for termination and
factually insufficient as to others, and remanded the case to the district court for a new trial on
the grounds for termination that were supported by legally but not factually sufficient evidence.
See M.D. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00531-CV, 2021 WL 1704258,
at *11–13 (Tex. App.—Austin Apr. 30, 2021, no pet.) (mem. op.). 2
2
The parties are familiar with the previous history of the case, which was reviewed in detail in this Court’s earlier opinion, and we need not repeat that history here.
2
However, no new trial occurred, and instead, the parties entered into an agreed
final order on March 7, 2023, naming the Department permanent managing conservator of
Ashley and naming Father and Mother as possessory conservators. 3
In June 2024, the Department filed an amended petition to modify the
parent-child relationship between Father and Mother and Ashley, including a request to
terminate their parental rights. Attached to the petition was an affidavit for a temporary
restraining order filed by Department caseworker Kalyn Marbach, who averred that the
Department had become aware of police involvement involving Father and Mother, specifically
allegations that Father had physically and sexually assaulted Mother. The foster parents filed a
petition in intervention, also seeking termination of Father’s and Mother’s parental rights.
The case proceeded to a bench trial on termination. Witnesses at trial included
Father; Department caseworker Marbach; Comal County Sheriff’s Deputy Whitney Cortez, who
investigated Father’s alleged assault of Mother; Dr. Erin Scarth, a clinical psychologist who
performed psychological evaluations on Father and Mother; Mary Lemieux, an occupational
therapist who had been working with Ashley; Dr. Daphny Ainslie, a licensed psychologist who
had reviewed evidence in the case for the Department; Lourdes Cruz, with CASA of Travis
County, who testified briefly regarding CASA’s best-interest recommendation; Foster Mother
and Foster Father; Dr. Wade Ashley, a pediatrician who had worked with Ashley; Tracy
Gillespie, the former CASA supervisor and guardian ad litem in the case; and Ashley’s paternal
aunt, who was Father’s proposed placement for Ashley. Documentary evidence included a copy
3
According to the agreed order, this Court “set a new dismissal date of 180 days from the date of the Mandate, July 29, 2021, to complete the trial on the specific termination grounds,” but “trial was not had before the new dismissal date of January 28, 2022, resulting in dismissal of [the pending] termination grounds by operation of law.”
3
of the Department’s petition, including the removal affidavit; law-enforcement records relating
to Father’s criminal history; and a recording of a 911 call made by Mother’s friend while a fight
between Mother and Father was occurring. We discuss this evidence below in more detail as it is
relevant to Father’s appeal.
At the conclusion of trial, the district court found by clear and convincing
evidence that termination of Father’s and Mother’s parental rights was in the best interest of the
child and that Father and Mother had: (1) knowingly placed and knowingly allowed the child to
remain in conditions and surroundings that endangers the physical and emotional well-being of
the child; (2) engaged in conduct or knowingly placed the child with persons who engaged in
conduct that endangered the physical or emotional well-being of the child; and (3) constructively
abandoned the child. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (2). Regarding Father,
the district court additionally found that he has a mental or emotional illness or a mental
deficiency that renders him unable to provide for the physical, emotional, and mental needs of
the child. See id. § 161.003. The district court further found that the Department had made
reasonable efforts to return the child to the parents. See id. §§ 161.001(f), .003(a)(4). In
accordance with these findings, the district court issued its order terminating Father’s and
Mother’s parental rights to Ashley and later made findings of fact and conclusions of law. This
appeal followed.
DISCUSSION
Hearsay
In his first issue, Father asserts that the district court abused its discretion by
admitting into evidence statements made by Mother against Father relating to his alleged assault
4
of her. In his second issue, Father asserts that the district court abused its discretion by admitting
into evidence law-enforcement records and a 911 call relating to a fight between Father and
Mother. In both issues, Father argues that the evidence constituted inadmissible hearsay.
Standard of review
We review a trial court’s decision on the admissibility of evidence for abuse of
discretion. Hlavinka v. HSC Pipeline P’ship, LLC, 650 S.W.3d 483, 496 (Tex. 2022). A trial
court abuses its discretion when it acts arbitrarily, unreasonably, without regard for guiding rules
or principles, or without supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d
708, 712 (Tex. 2016) (orig. proceeding). To preserve error on evidentiary rulings, a party’s
objection must be timely and specifically state the grounds on which the objection is based, if the
grounds are not apparent from context. See Tex. R. Evid. 102(a)(1); Tex. R. App. P. 33.1(a).
Even if error is preserved, the admission or exclusion of erroneously admitted evidence is “likely
harmless if the evidence was cumulative, or if the rest of the evidence was so one-sided that the
error likely made no difference.” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867,
873 (Tex. 2008). “The general rule is error in the admission of testimony is deemed harmless
and is waived if the objecting party subsequently permits the same or similar evidence to be
introduced without objection.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907
(Tex. 2004).
Statements made by Mother against Father
In his first issue, Father argues that the district court abused its discretion in
admitting statements that Mother made to law enforcement against him. Following Father’s
alleged assault of Mother, Deputy Cortez was dispatched to the hospital to interview her. Over
5
Father’s hearsay objection, Cortez testified that Mother told her that Father sexually assaulted
her, and she also testified as to certain details of the assault as told to her by Mother.
Additionally, law-enforcement records admitted into evidence over Father’s hearsay objection
included statements indicating that Mother reported being physically and sexually assaulted
by Father.
The district court admitted Mother’s statements to law enforcement on the theory
that they were admissions by a party opponent. See Tex. R. Evid. 801(e)(2) (statement is not
hearsay if it is made by opposing party and “offered against” that party). However, Mother’s
statements were offered against Father, not against Mother.
Even if Mother’s statements to law enforcement constituted inadmissible hearsay,
we cannot conclude on this record that Father was harmed by their admission. No judgment may
be reversed on appeal on the ground that the trial court made an error of law unless the court of
appeals concludes that the error complained of (1) probably caused the rendition of an improper
judgment; or (2) probably prevented the appellant from properly presenting the case to the court
of appeals. Tex. R. App. P. 44.1(a); see Texas Dep’t of Hum. Servs. v. White, 817 S.W.2d 62, 63
(Tex. 1991); A.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00658-CV, 2018 WL
1220894, at *5 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.); see also In re K.R.,
63 S.W.3d 796, 800–01 (Tex. 2001) (stating that evidentiary rulings are subject to harmless error
analysis). “To put it another way, a successful challenge to evidentiary rulings usually requires
the complaining party to show that the judgment turns on the particular evidence excluded or
admitted.” Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). The erroneous
admission or exclusion of evidence “is likely harmless if the evidence was cumulative, or the rest
of the evidence was so one-sided that the error likely made no difference in the judgment.” State
6
v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); In re Z.M., 456 S.W.3d
677, 692 (Tex. App.—Texarkana 2015, no pet.).
In this case, Mother’s statements against Father were cumulative of similar
evidence admitted without objection. This evidence included the Department’s first amended
petition to modify the parent-child relationship, attached to which was a copy of an affidavit for
a temporary restraining order submitted by Department caseworker Marbach. The affidavit
included detailed information about the alleged assault and related bad acts committed by Father:
On May 28th, 2024, the Department became aware that there had been police
involvement regarding [Mother] and [Father]. Records from San Marcos Police
Department were requested. According to the records, [Mother] contacted a San
Marcos Police detective complaining of physical and sexual assault committed by
[Father] against [Mother] on or about March 28, 2024. During the
communications, [Mother] claimed that she was being held captive by [Father],
but she was able to get away from him. She said that she was on her way to the
hospital in San Marcos. [Mother] further submitted screen shots of text messages
to the San Marcos police officer. The text messages submitted were alleged to be
from [Father]. The messages were threatening in nature. [Father] tells her that
she must come back to him and keep her mouth shut or she could wind up in a
dumpster or field. . . . [Mother] disclosed that she had been physically and
sexually assaulted by [Father].
There are further screen shots from [Father] which indicate that [Father] was
physically abusing [Mother] in September 2023. Further, the messages say that
[Father] forced [Mother] to accuse a man named John Slappy as the person who
assaulted her. During September 2023, [Mother] was engaged in a relationship
with John Slappy. The accusations against Mr. Slappy led to his arrest and
incarceration.
On May 31, 2024, I, Kalyn Marbach was contacted by [Mother] via text message
voicing that she needed her attorney’s contact information and expressed being
scared for her safety. I provided this information to her attorney. [Mother] said
that she was at a hospital in Hays County and had taken a phone from [Father].
On June 2nd, 2024, I, Kalyn Marbach, met with [Mother] virtually. During my
7
meeting with [Mother], she voiced concerns for her safety if she were to remain
with [Father]. She is also concerned what will happen if she were to leave.
[Mother] stated that she can take the abuse, when l asked her to clarify, she
informed me that [Father] has hit her physically. She said that [Father] was the
one who assaulted her in September 2023, but [Father] made her lie to keep him
from getting in trouble. [Mother] was encouraged to leave the home to get to a
safe space for herself. [Mother] advised me to request police records because the
cops had been called to the home. I requested police records and was able to
review that law enforcement had been called to the home numerous times. On at
least one occasion, the police reports indicate that [Father] had a firearm.
Additionally, Marbach testified at trial without objection that Mother told her that
Father had sexually assaulted her. Also, copies of photos of Mother’s injuries, taken at the
hospital, were admitted into evidence without objection, and they show injuries consistent with
an assault, including a photo showing a laceration on Mother’s neck. When asked if Mother had
“disclosed domestic violence or sexual assault to you one time or many times,” Marbach
testified, “There were many.” She added that Mother’s statements were “consistent with the fact
that [Father] had been the one assaulting her.” Based on the other evidence in this record
supporting the Department’s claim that Father assaulted Mother, we cannot conclude that Father
was harmed by any error in the admission of Mother’s statements to law enforcement.
We overrule Father’s first issue.
Law-enforcement records and 911 call
In his second issue, Father complains generally about hearsay contained within
law-enforcement records that were admitted into evidence and the admission of a 911 call in
which the caller reported observing Father and Mother fighting. Regarding the law-enforcement
records, we observe that they consist of hundreds of pages of police incident reports and similar
documents and numerous out-of-court statements. Father’s hearsay objections were limited to a
handful of statements contained within the records rather than the records as a whole, and he
8
does not identify in his brief the specific statements that he believes were inadmissible. 4 We
conclude that Father failed to adequately brief this issue. See Tex. R. App. P. 38.1(i).
Moreover, we cannot conclude that Father was harmed by the admission of any
out-of-court statements contained within the law-enforcement records to which he objected. The
statements were either cumulative of other evidence properly admitted or described minor
incidents involving Father such that their admission likely made no difference in the judgment. 5
Turning to the 911 call, it was made by Mother’s friend during a fight between
Father and Mother. The friend reported that he was witnessing the fight while it was in progress
and that he was hiding from Father and Mother. In the call, the friend described what he was
seeing and hearing at that time. The district court would not have abused its discretion in
admitting this evidence under the “present sense impression” exception to the hearsay rule. See
Tex. R. Evid. 803(1) (defining present sense impression as “[a] statement describing or
explaining an event or condition, made while or immediately after the declarant perceived it”). 6
We overrule Father’s second issue.
4
In the court below, Father made the following hearsay objections to exhibit 9: “Pages 12 through 14 have hearsay of [Father’s sister]”; “17 through 19, there’s hearsay from [Mother’s father]”; “20 to 26, it’s hearsay of Genaro Esparza”; “Page 30 is hearsay of Russell Middleton.” He provided no additional information regarding these objections.
5
The “hearsay of [Father’s sister]” involved a domestic disturbance during which Father’s sister stated that Father was screaming at her; the “hearsay from [Mother’s father]” involved an incident during which Mother’s father “started talking smack” to Father and Father “talked smack back”; the “hearsay of Genaro Esparza” involved the 911 call discussed below that we conclude was properly admitted; and the “hearsay of Russell Middleton” involved a report of unauthorized credit-card charges.
6
Father also argues on appeal that the call was testimonial in nature and therefore violated his right to confront the witnesses against him in violation of Crawford v. Washington, 541 U.S. 36 (2004). However, this argument was not raised in the court below and thus has not been preserved for our review. See Tex. R. App. P. 33.1(a).
9
Evidence of events occurring before previous order
In his third issue, Father asserts that the district court abused its discretion by
admitting and considering evidence of events that occurred before the agreed final order in
March 2023. According to Father, Section 161.004 of the Texas Family Code prohibited the
district court from considering any such evidence.
Section 161.004 provides that the trial court “may terminate the parent-child
relationship after rendition of an order that previously denied termination of the parent-child
relationship if” certain requirements are satisfied, specifically:
(1) the petition under this section is filed after the date the order denying
termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator,
possessory conservator, or other party affected by the order denying
termination have materially and substantially changed since the date that
the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date
the order denying termination was rendered; and
(4) termination is in the best interest of the child.
Tex. Fam. Code § 161.004(a). Father argues that because the March 2023 agreed order was not
an “order denying termination” of his parental rights, the Department could not consider
evidence of anything that happened before March 2023 in deciding whether to terminate Father’s
parental rights.
10
However, in this case, the district court did not terminate Father’s parental rights
under Section 161.004. 7 Instead, the district court terminated Father’s parental rights under the
familiar statutory framework in Section 161.001, which requires clear and convincing evidence
that Father committed one of the predicate grounds for termination and that termination of his
parental rights is in the best interest of the child. See Tex. Fam. Code § 161.001(b)(1), (2). And
as we explain below, there was sufficient evidence to support the district court’s finding that
Father committed at least one of the predicate grounds for termination, and Father does not
challenge the sufficiency of the evidence supporting the district court’s best-interest finding.
We overrule Father’s third issue.
Evidentiary sufficiency
In his fourth, fifth, sixth, and seventh issues, Father challenges the sufficiency of
the evidence supporting the predicate grounds for termination that the district court found. In his
eighth issue, Father challenges the sufficiency of the evidence supporting the requirement that
the Department made reasonable efforts to return Ashley to Father prior to trial.
Standard of review
“To terminate parental rights, the factfinder must find by clear and convincing
evidence that (1) at least one of the termination grounds set forth in Section 161.001(b)(1) or
other sections of the Texas Family Code applies, and (2) termination is in the best interest of the
child.” In re C.E., 687 S.W.3d 304, 308 (Tex. 2024). “Clear and convincing evidence ‘will
7
The Department originally sought termination of Father’s parental rights under both Section 161.001 and Section 161.004. However, Father filed a motion for summary judgment months before trial began, arguing that Section 161.004 could not be used to terminate his parental rights because there was no prior order denying termination, and the district court granted Father’s motion for summary judgment.
11
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. (quoting Tex. Fam. Code § 101.007). This “higher standard of
proof” is required “[b]ecause the termination of parental rights implicates fundamental interests.”
In re A.B., 437 S.W.3d 498, 502 (Tex. 2014).
An appellate court conducting a legal-sufficiency review in a termination-ofparental-rights appeal considers all evidence in the light most favorable to the trial court's
finding, as well as any undisputed contrary evidence, to determine whether a reasonable
factfinder could have formed a firm belief or conviction that it was true. In re A.C., 560 S.W.3d
624, 631 (Tex. 2018). “Courts ‘must assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so,’ but courts ‘should disregard all evidence
that a reasonable factfinder could have disbelieved or found to have been incredible.’” In re
C.E., 687 S.W.3d at 308 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In a factual
sufficiency review in a termination-of-parental-rights appeal, the appellate court considers and
weighs disputed evidence contrary to the trial court’s findings against the evidence in favor of
the finding. In re A.C., 560 S.W.3d at 631. “Evidence is factually insufficient if, in light of the
entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a
finding is so significant that the factfinder could not have formed a firm belief or conviction that
the finding was true.” Id. However, appellate courts “provide due deference to the decisions of
the factfinder who, having full opportunity to observe witness testimony first-hand, is the sole
arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d
at 503.
12
Endangerment
We will focus our sufficiency analysis on the district court’s endangerment
finding under Section 161.001(b)(1)(E). That ground “applies when 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.’” In re N.L.S., 715 S.W.3d 760, 764 (Tex.
2025) (quoting Tex. Fam. Code 161.001(b)(1)(E)). “‘Endanger’ in this context means to ‘expose
to loss or injury; to jeopardize.’” Id. (quoting Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). “It is ‘not necessary that the [parent’s] conduct be directed at the child or
that the child actually suffers injury.’” Id. “Under subsection E, the evidence must show the
endangerment was the result of the parent’s conduct, including acts, omissions, or failure to act.”
In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th] Dist. 2014, pet. denied) (citing
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “Termination under
subsection E must be based on more than a single act or omission; the statute requires a
voluntary, deliberate, and conscious course of conduct by the parent.” Id. An endangerment
finding requires more than the threat of metaphysical injury or possible ill effects from a
less-than-ideal family environment, but the Department does not have to prove that the conduct
was directed at the child or that the child suffered an actual injury. See In re E.N.C., 384 S.W.3d
796, 803 (Tex. 2012). “Instead, a pattern of parental behavior that presents a substantial risk of
harm to the child permits a factfinder to reasonably find endangerment.” In re R.R.A.,
687 S.W.3d 269, 278 (Tex. 2024).
Endangering conduct can include acts of domestic violence and a propensity for
violence, even if the acts did not occur in the child’s presence, were not directed at the child, or
did not cause actual injury to the child. See In re M.S., 662 S.W.3d 620, 630 (Tex. App.—
13
Beaumont 2023, pet. denied); In re G.M., 649 S.W.3d 801, 809 (Tex. App.—El Paso 2022, no
pet.); In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.—San Antonio 2017, no pet.). Moreover,
“Texas courts routinely consider evidence of parent-on-parent physical abuse in termination
cases without specifically requiring evidence that the conduct resulted in a criminal conviction.”
In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
(collecting cases).
Here, the record supports a finding by the district court that Father committed
multiple acts of violence against Mother. First, Deputy Cortez testified that when she went to the
hospital to interview Mother, Mother told her that Father had sexually assaulted her. Cortez
added, “She said she was physically and sexually assaulted.” Mother also told Cortez that the
assault had happened on Father’s property and that “there was a handgun involved, but she didn’t
state if it was used during the assault.” Cortez described Mother as “look[ing] like she hadn't
showered in days. Her clothing were [sic] all over the place. She had bruises. She had
lacerations. Her hair was everywhere. She was crying. She was scared.” Photos taken of
Mother at the hospital were admitted into evidence, and they show injuries to Mother that are
consistent with an assault, including a severe laceration mark on her neck. Additionally, in the
photos, Mother had short hair. Mother told Cortez that she used to have long hair but “during
one of the assaults, [Father] used some kitchen shears to cut her hair. She had—she had it up in
a bun, and he cut her hair.” Cortez also asked Mother about the laceration on her neck, and
Mother told her that “a string, rope—she described it from like a hoodie—was used around her
neck during—being sexually assaulted.” Mother identified Father as the person who had put the
string around her neck. Mother also sustained an injury to her foot, and she told Cortez that the
injury was the result of Father running over her foot with his vehicle. Mother further told Cortez
14
that the physical and sexual assault lasted “about two days” and that this had happened to her
“more than once.” Cortez testified that the injuries to Mother that she observed were consistent
with Mother’s report of what had occurred, and she agreed that based on what she observed at
the hospital, she had probable cause to believe “that the sexual and physical assaults that
[Mother] described occurred.”
There was additional evidence from which the district court could have
reasonably inferred that the March 2024 assault was not an isolated incident but a pattern of
behavior. When asked if Mother had “disclosed domestic violence or sexual assault to [her] one
time or many times,” Department caseworker Marbach testified, “There were many” and that
Mother’s statements to her were “consistent with the fact that [Father] had been the one
assaulting her.” The affidavit from Marbach that was admitted into evidence without objection
stated that Father had sent threatening text messages to Mother, including one telling her “that
she must come back to him and keep her mouth shut or she could wind up in a dumpster or
field”; that Father had been “physically abusing [Mother] in September 2023”; that in May 2024,
Mother was again at a hospital and texted Marbach that she was “scared for her safety”; that in
June 2024, Mother met with Marbach virtually and “voiced concerns for her safety if she were to
remain with [Father]” and “what will happen if she were to leave”; and that “[Father] has hit her
physically” but that “she can take the abuse.” Considering this evidence in the light most
favorable to the district court’s finding, we conclude that a reasonable factfinder could have
formed a firm belief or conviction that Father had endangered the child’s well-being by engaging
in a pattern of abusive conduct toward Mother. Thus, the evidence is legally sufficient to support
the district court’s finding.
15
The evidence contrary to the district court’s finding consisted of Father denying
that he had assaulted Mother, but the district court as factfinder was entitled to disbelieve
Father’s testimony. In light of the entire record, we conclude that the disputed evidence a
reasonable factfinder could not have credited in favor of the finding that Father engaged in
endangering conduct is not so significant that the factfinder could not have formed a firm belief
or conviction that the finding was true. Accordingly, the evidence is also factually sufficient to
support the district court’s finding.
We overrule Father’s fifth issue relating to Section 161.001(b)(1)(E). Because
only one predicate ground is necessary to support the termination of Father’s parental rights, see
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.—
Fort Worth 2003, no pet.), we need not consider his fourth, sixth, and seventh issues addressing
alternative predicate grounds, see Tex. R. App. P. 47.1.
Reasonable efforts to return
In his eighth issue, Father asserts that the evidence is insufficient to support the
district court’s finding that the Department made reasonable efforts to return Ashley to Father
prior to trial. See Tex. Fam. Code § 161.001(f). According to Father, “The evidence clearly
showed that the only reasonable efforts TDFPS made were efforts to have [Ashley] remain with
the foster home and be adopted by the foster parents.”
“Generally, implementation of a family service plan by [the Department] is
considered a reasonable effort to return the child to the parent.” A.D. v. Texas Dep’t of Fam. &
Protective Servs., 673 S.W.3d 704, 714 (Tex. App.—Austin 2023, no pet.) (quoting In re A.L.H.,
468 S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.] 2015, no pet.)). “While implementation
16
of a family service plan by the Department is generally considered a reasonable effort to return a
child to the parent, that is not the only evidence which can satisfy this element.” In re F.E.N.,
542 S.W.3d 752, 766 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). For example, “[t]he
Department’s efforts to place the child with relatives may constitute legally and factually
sufficient evidence to support the trial court’s finding that the Department made reasonable
efforts.” In re J.G.S., 550 S.W.3d 698, 705 (Tex. App.—El Paso 2018, no pet.). The
Department must make “reasonable efforts, not ideal efforts.” In re M.N.M., 708 S.W.3d 321,
329 (Tex. App.—Eastland 2025, pet. denied). “The issue before us is whether the Department’s
reunification efforts were reasonable under the circumstances.” Id.
In this case, the Department implemented a family service plan in March 2025.
When asked what services the plan offered, Marbach testified:
[I]n that family plan, I had provided resources, all resources that [Father] or
[Mother] could utilize to help educate on how to work with children who have
multiple diagnoses, diagnosis; how to interact with them; different organizations
that could assist them with understanding and knowing how to not just educate
themselves but also try to help educate [Ashley].
Marbach added that one of the resources “was a Down Syndrome Association here in Austin that
offers support classes.” The service plan also required Father to complete a Batterers
Intervention Prevention Program to address his issues with domestic violence; complete a
nurturing parent program; maintain safe and appropriate housing and employment; refrain from
criminal activity; and complete individual therapy and psychiatric and psychological evaluations.
Marbach testified that Father refused to sign the service plan, did not ask her if he could
participate in any of the offered services, and did not ask her for resources or accommodations to
help him access the services provided.
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In addition to implementing the service plan, Marbach testified that the
Department considered placing Ashley with two of Father’s sisters, but the sisters did not
complete required home studies, and Department officials had difficulty contacting Father’s
family. The Department also arranged for additional family therapy, but that proved
unsuccessful because Father never applied the behavioral changes suggested by the therapist.
After that, the Department found another therapist, but that therapist had difficulty contacting
Father despite making multiple attempts to do so. On this record, we conclude that there was
legally and factually sufficient evidence to support the district court’s finding that the
Department made reasonable efforts to return Ashley to Father prior to trial.
We overrule Father’s eighth issue.
CONCLUSION
We affirm the district court’s order of termination.
Gisela D. Triana, Justice
Before Justices Triana, Kelly, and Ellis
Affirmed
Filed: September 4, 2026
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