in the Interest of K.R.E.T. Children

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00064-CV

IN THE INTEREST OF K.R.E.T., et al., Children

From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02260
Honorable Dick Alcala, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice

Delivered and Filed: July 22, 2015

AFFIRMED

B.T. appeals the trial court’s order terminating her parental rights to her children K.R.E.T.,

C.R.A., D.S.T., and M.J.T. In her only issue, B.T. asserts the evidence was neither legally nor

factually sufficient for the trial court to find by clear and convincing evidence that terminating her

parental rights was in her children’s best interests. We conclude the evidence is both legally and

factually sufficient, and we affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 2013, the Department of Family and Protective Services petitioned to

remove B.T.’s children from her based on allegations of physical abuse. The trial court granted

the petition and appointed the Department as temporary sole managing conservator of the children.

One of the children, C.R.A., was later placed with his biological father, D.A. After several
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permanency hearings and a jury trial on the merits, the trial court terminated B.T.’s parental rights

to her four children based on subparagraphs (D), (E), (F), (I), and (O) of Family Code section

161.001(1), see TEX. FAM. CODE ANN. § 161.001(1) (West 2014), and because it was in the

children’s best interests, see id. § 161.001(2).

B.T. does not challenge the trial court’s findings concerning the statutory grounds for

involuntary termination of her parental rights. See TEX. FAM. CODE ANN. § 161.001(1); see also

In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). Instead, she argues the trial court erred because the

evidence was neither legally nor factually sufficient for it to find by clear and convincing evidence

that terminating her parental rights was in her children’s best interests. See TEX. FAM. CODE ANN.

§ 161.001(2); accord In re J.F.C., 96 S.W.3d at 261.

SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

“Involuntary termination of parental rights involves fundamental constitutional rights and

divests the parent and child of all legal rights, privileges, duties, and powers normally existing

between them.” In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.)

(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly

scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210

S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).

An order terminating parental rights must be supported by clear and convincing evidence

that (1) the parent has committed one of the grounds for involuntary termination as listed in section

161.001(1) of the Family Code, and (2) terminating the parent’s rights is in the best interest of the

child. Id. § 161.001; In re J.F.C., 96 S.W.3d at 261. “There is a strong presumption that the best

interest of a child is served by keeping the child with its natural parent, and the burden is on the

[Department] to rebut that presumption.” In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston
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[14th Dist.] 2012, no pet.). The same evidence of acts or omissions used to establish grounds for

termination under section 161.001(1) may be probative in determining the best interest of the child.

Id.

When a clear and convincing evidence standard applies, a legal sufficiency review requires

a court to “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.”

In re J.F.C., 96 S.W.3d at 266; accord In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). If the court

“determines [a] reasonable factfinder could form a firm belief or conviction that the matter that

must be proven is true,” the evidence is legally sufficient. See In re J.L., 163 S.W.3d at 85; In re

J.F.C., 96 S.W.3d at 266.

Under a clear and convincing standard, evidence is factually sufficient if “a factfinder

could reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San

Antonio 2004, no pet.). We must consider “whether disputed evidence is such that a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96

S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.

B. Best Interests of the Children

A trial court may terminate a parent’s rights to a child if it finds, inter alia, such

“termination is in the best interest of the child.” TEX. FAM. CODE ANN. § 161.001(2); accord In

re J.F.C., 96 S.W.3d at 261.

1. Evidence Regarding the Children’s Best Interests

Applying the applicable standards of review for sufficiency of the evidence, we examine

all the evidence, see In re J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d

802, 807 (Tex. 2005) (crediting or disregarding evidence), and recite below the evidence that
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especially pertains to the Holley factors, see Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). During four days of testimony, the jury heard from thirteen different witnesses and

arguments of various counsel for the Department, B.T., each of the fathers, and the children’s ad

litem.

a. D.A. (C.R.A.’s Father) and S.H. and C.H. (D.A.’s Grandparents)

D.A., S.H., and C.H. testified about the abuse allegations and their interactions with B.T.

B.T. failed to have regular visitation with C.R.A.; when she did see C.R.A., she was often late and

did not stay for the entire time allotted. Moreover, when C.R.A. would try to discuss incidents

that happened in the past, B.T. simply changed the topic and refused to engage in a conversation

with C.R.A. They described C.R.A.’s demeanor during and after visits with B.T. and his physical

and emotional reactions to the allegations. C.R.A. refused to see B.T. for several months and

exhibited signs of anxiousness before his visits. They also described C.R.A. suffering from

nightmares after his visits with B.T. Although C.R.A.’s anger issues have decreased after

counseling, he still exhibits signs of being afraid of water, which they attribute to incidents where

J.G., B.T.’s fiancé, held C.R.A. under water.

All three witnesses described B.T. as unable to care for or protect C.R.A. or his siblings.

Additionally, D.A. testified that B.T. had done “absolutely nothing” to contribute to or participate

in C.R.A’s academics, medical appointments, school activities, or financial stability. B.T. neither

bought Christmas presents nor contacted C.R.A. during the Christmas holidays. In fact, the last

visit B.T. had with C.R.A. was the first week of December, 2012. D.A. further opined that B.T.

“can’t and she won’t and she hasn’t protected” C.R.A. or his brothers and sisters.

Because B.T. began her relationship with D.A. prior to K.R.E.T.’s birth, D.A. and his

grandparents have had a relationship with K.R.E.T. her entire life. S.H. testified that from the

beginning, B.T. showed little concern for K.R.E.T.’s apparent developmental delays.
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b. Angie Steinau, Caseworker

Angie Steinau, B.T.’s caseworker, testified it would be in the children’s best interests for

B.T.’s parental rights to be terminated. She also testified as follows.

(1) Protection of the Children

Between the years of 2009 and 2011, there were twelve different referrals to Child

Protective Services regarding B.T.’s children. These incidents included nine cases of alleged

physical abuse, two cases of alleged negligent supervision, and one case of alleged sexual abuse.

The Department’s allegations centered on physical abuse of the children perpetuated by

J.G., who was B.T’s boyfriend at the time of the allegations. The abuse included J.G. striking

C.R.A with a seatbelt when B.T. was present. Steinau discussed the children’s outcries with B.T.,

and J.G. was indicted for the alleged abuse. Yet, almost without exception, B.T. continued to

believe the bruises, scratches, and black eyes were the result of accidents and “rough housing.”

Steinau explained the first item on B.T’s service plan provided that B.T. “will demonstrate and

show willingness to protect her children from harm.” Steinau specifically told B.T. that it was

“vital” that she “cut all contact and communication” with J.G. to regain possession of her children.

Yet, B.T. remained in a relationship with J.G.

When Steinau was looking for placement for the children, B.T. suggested a family friend,

Yvette Fischer. B.T. failed to disclose the previous allegations that K.R.E.T. had been sexually

abused in Fischer’s home. When asked, B.T. responded the perpetrator was deceased and that the

allegations were never proven.

(2) Support, Care for Children

Steinau further opined that throughout the duration of the case, B.T. was unable “to put her

children’s needs before her own, to provide clothing, shelter, medical care, food, and proper

supervision. Additionally, B.T. failed to secure consistent housing to provide shelter for the
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children or “learn new behaviors that encourage stability, self-worth, or cooperation with all family

members.” B.T. testified that her immediate plan included a two bedroom apartment located on

De Zavala. It was her plan to drive the children to Universal City for school, then drive back to

attend school on De Zavala, go to work, pick the children up from school and take them to her

work until 9:00 p.m. Moreover, she could not provide a reasonable basis for affording the rent for

the apartment in question.

Once again, Steinau emphasized B.T.’s failure to terminate her relationship with J.G.

Regardless of Steinau’s attempts, B.T. did not recognize the signs of domestic violence, including

yelling, throwing things, or physical abuse. Finally, Steinau testified B.T. failed to “demonstrate

her ability to protect her children from abuse and neglect.” Ultimately, the Department “had no

other choice but to move forward with termination [of B.T.’s parental rights] because [B.T.] still

was not acknowledging that this happened from this man who hurt her children.”

B.T. had not provided any financial support or clothing for the children since they moved

back to San Antonio. Although Steinau made several requests, B.T. failed to provide proof of

employment or residency. B.T. also failed to obtain the psychological support Steinau suggested.

(3) Other Factors

Steinau testified that during different periods of time, the children have asked when they

are “going home.” She further opined that the children do not express a clear position regarding

termination—they miss B.T., but do not miss the unstable living environment. Steinau opined the

children have not had a stable environment with B.T. since they were born. Although she offered

several different services to assist, B.T. failed to take advantage of any of the services.

They have not had stability since they were born, basically. They had been moved
around. I don’t—because of the moving and the instability, I think the very basic
needs were met, but I think a child should be provided more than that. Yes, they
had a roof over their head. I believe somebody testified at one point that [B.T.] was
in a car. I don’t know how long that happened. I don’t know how they got food. I
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see a pattern—a strong pattern of domestic violence. I don’t see that pattern of
domestic violence has been broken. I don’t see a change of behavior. I don’t see
[B.T.] having put her children’s needs before her own through the duration of this
case. I feel that the lack of acknowledgement about what happened to her children
and who caused them to be harmed was never discussed. And I don’t think it was
ever really believed by [B.T.], and I think that continues to put them in danger.

Although Steinau indicated great concern regarding B.T.’s lack of housing and

employment, she reiterated this was not the primary reason for her recommendation that

termination was in the children’s best interests.

The primary reason is the failure to keep her children safe, and the possibly
continued relationship with [J.G.], who was—it was a severe domestic violence
situation, and the kids were harmed, they were hurt. . . . And the failure to
acknowledge that [J.G.] did hurt her children.

c. R.H., the Current Placement for K.R.E.T., D.S.T., and M.J.T.

R.H. testified that she has cared for K.R.E.T., D.S.T., and M.J.T. since August of 2014.

R.H. explained that she had known B.T. for over eleven years, since B.T. was fifteen years old.

B.T. used to babysit R.H.’s children. She indicated that she was saddened to discover that B.T.

was still in a relationship with J.G.

Regarding the children, R.H. relayed her attempts to acclimate the children to an

environment where they must follow the rules. K.R.E.T. struggles emotionally, verbally, and

academically; on her last report card, she was failing every subject. R.H. suspects K.R.E.T. is

dyslexic, but no diagnosis has been made. K.R.E.T. still has issues with bedwetting and lying.

D.S.T. is doing very well academically, but still exhibits anger management issues and has “been

written up at daycare numerous times for hitting people, throwing chairs, hitting a teacher.” M.J.T.

also has anger issues and actually “beat up his daycare teacher.”

R.H. expressed some frustration with B.T. regarding her ongoing relationship with J.G. “I

encouraged her to terminate her relationship with him because, to me, her children are more

important than he is.”
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d. Barbara Bass, Court Appointed Special Advocate

Barbara Bass first met B.T.’s four children in October of 2013. She explained that she has

seen the children two to three times a month over the last sixteen months. During that time, she

has seen the children in the placement homes, at school, at day care, and during parent-child visits

with B.T. Bass explained that originally, she felt B.T. was working to remedy the issues, and in

March of 2014, Bass recommended reconciliation to the trial court. By January of 2015, that

recommendation had changed and Bass was recommending B.T.’s parental rights be terminated.

Bass explained that she attended a lot of parent-child visits and in her opinion, B.T. “didn’t

seem to put the kids first.” Bass described B.T. as more concerned financially with having her

nails done than having money to buy the children ice cream, and although B.T. would interact with

her children, she was always in a hurry to leave. “And I know it sounds financial, but that’s a big

thing with children is you have to put away money to take care of your children and take care of

their needs, and at this point it’s just emotional needs.” Bass averred that, in her opinion, she did

not believe that B.T. could protect and take care of the children.

e. Yvette Fischer

Fischer testified that she cared for K.R.E.T., D.S.T., and M.J.T. between March and August

of 2014. Fischer relayed that the children visited with B.T. via phone twice weekly, on Sundays

and Wednesdays. On two occasions, B.T. put J.G. on the phone and Fischer immediately

disconnected the call. When Fischer confronted B.T., she claimed the individual was not J.G.

When asked, Fischer explained that she knew J.G. and knew his “distinctive voice.” Fischer

further relayed, that after a couple of months, things “started turning sour.” B.T. would not talk to

her and failed to visit the children on several occasions. Fischer ultimately asked the Department

to remove the children because five children was more than she could handle.

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C. Holley Factors

The jury is the sole judge of the weight and credibility of the evidence, including the

testimony of the Department’s witness. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per

curiam) (requiring appellate deference to the fact-finder’s findings); City of Keller, 168 S.W.3d at

819. The factors a fact-finder uses to ascertain the best interests of the children were set forth in

Holley, 544 S.W.2d at 371–72; accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting

the Holley factors). The Holley Court warned that “[t]his listing is by no means exhaustive, but

does indicate a number of considerations which either have been or would appear to be pertinent.”

Id. at 372. We address the major issues faced by the jury below.

1. The Desires of the Children

In the present case, Steinau testified that the children did not express an opinion on the

termination of B.T.’s parental rights. With the exception of C.R.A., the children expressed that

they missed their mother, but they simultaneously expressed their desire for a more stable living

arrangement. Although the children expressed that they missed their mother, this cannot be the

sole deciding factor. See Phillips v. Tex. Dept. of Protective & Regulatory Servs., 25 S.W.3d 348,

356 (Tex. App.—Austin 2000, no pet.) (“What children want, however, is not always in their best

interests. We hold that the desire of the children to stay with their mother does not outweigh the

other evidence that their home life was chaotic, that their emotional and physical well-being was

threatened, and that their mother was unwilling to improve as a parent.”).

2. The Emotional and Physical Needs of the Children and Protecting the
Children from Danger Now and in the Future

Prior to this incident, twelve calls were made to the Department regarding B.T. and her

children, including one case where the Department removed the children. The various cases

included physical abuse, neglectful supervision, and an allegation of sexual assault involving

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K.R.E.T. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth, 2003, no pet.)

(“[A]busive or violent conduct by a parent or other resident of a child’s home may produce an

environment that endangers the physical or emotional well-being of a child.”).

Throughout the pendency of this case, B.T.’s actions showed her inability to care for the

emotional and physical needs of the children and to protect her children from danger. Although

J.G. was under indictment for injuring her children, and the Department provided B.T. with the

children’s outcries of abuse by J.G., B.T. continued her relationship with J.G. Additionally, when

the Department sought suitable housing for the children, B.T. recommended Fischer and allowed

the Department to place the children in Fischer’s home without alerting the Department of the

prior allegations of the sexual assault of K.R.E.T. while in Fischer’s care. The jury could have

also looked to the testimony regarding B.T.’s inability to recognize or seek help for K.R.E.T.’s

developmental delays or the anger issues seen in both D.S.T. and M.J.T.

The jury could have reasonably determined that B.T. was unable to put her children’s

emotional and physical needs before her own and that she was unable to protect her children from

danger now or in the future. See In re C.J., 392 S.W.3d 763, 770 (Tex. App.—Dallas 2012, no

pet.) (looking at domestic violence in the home in a best interests determination).

3. B.T.’s abilities

The evidence was sufficient to find that B.T.’s abilities are limited. Throughout this case,

B.T. has shown that when it comes to caring for her children, she has not exercised good judgment.

The jury could have relied on B.T.’s continued relationship with J.G. and her recommendation for

placement of the children with Fischer. S.H. and B.H. testified that B.T. did not take full advantage

of visiting with her children and often cut the visits short. There was also significant testimony

that although B.T. professed that she purchased Christmas gifts for the children, the gifts were

never given to the children and she neither visited nor called the children on Christmas.

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Based on the evidence presented, the jury could have reasonably concluded that B.T.

lacked the decision making skills and parental abilities to provide for and parent her children in a

healthy and safe manner.

4. Programs Available to Assist B.T. to Promote the Best Interests of the
Children

The evidence clearly supported the conclusion that B.T. was without a support system.

Yet, even when the Department made resources available, B.T. did not reach out for assistance.

As Steinau explained, the psychological counseling would have provided B.T. with the skills to

identify and escape domestic violence. She chose not to participate in the counseling required by

the Department. The only exception to this appeared to be B.T.’s attempts at increasing her

education. B.T. testified that her degree requirements were almost complete and she was looking

forward to her externship. Once again, B.T.’s inability to plan ahead left her without any

description of what the externship would entail and how she would provide for childcare during

the externship.

5. B.T.’s Plans for the Children and Stability of the Home

Although B.T. professed to have a two-bedroom apartment waiting for her, she clearly

could not afford the monthly rent and had not made any arrangements for such. She testified that

she brought in about $800 per month from her current job and the rent for the apartment was $900

per month. When asked, B.T. showed little concern for the shortfall. As further evidence of B.T.’s

inability to provide for her children, the jury could have reasonably concluded that B.T.’s failure

to provide, at any level, for her children during the duration of this case was evidence of her future

inability to do so.

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6. B.T.’s Acts or Omissions Which Indicate the Existing Parent-Child
Relationship is Not a Proper One

The jury need only look at B.T.’s relationship with J.G. for support that B.T. does not have

a proper parent-child relationship with her children. She failed to protect them from physical and

emotional injury at J.G.’s hands. Moreover, when she was confronted with the evidence against

J.G., she discounted the evidence and continued her relationship with him. Additionally, the jury

heard testimony from S.H. about B.T.’s inability to discuss the abuse with C.R.A. When C.R.A.

asked B.T. about what had transpired, she avoided the question and changed the topic of

conversation. Throughout the duration of the case, B.T. failed to take responsibility for placing

the children in a dangerous environment or allowing the children to be harmed.

D. Analysis

The jury could have reasonably believed the testimony that J.G. abused all four of B.T.’s

children, specifically (1) hitting C.R.A. with a seatbelt and holding his head underwater and (2)

hitting K.R.E.T. with such force it caused bruising. The record clearly supports B.T.’s

unwillingness to put her children’s needs before her own and inability to effect positive changes

within a reasonable time. The jury could have also reasonably believed the testimony that B.T.

(1) failed to provide a safe and stable home for her children, (2) failed to provide proof of

employment, and (3) her inability to appropriately care for her children.

Reviewing the evidence under the two sufficiency standards, and giving due consideration

to evidence that the jury could have reasonably found to be clear and convincing, we conclude the

jury could have formed a firm belief or conviction that terminating B.T.’s parental rights to

K.R.E.T., C.R.A., D.S.T., and M.J.T. was in each child’s best interests. See In re J.F.C., 96 S.W.3d

at 266; see also In re H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually

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sufficient to support the trial court’s order. See In re J.F.C., 96 S.W.3d at 266; see also In re

H.R.M., 209 S.W.3d at 108.

CONCLUSION

The trial court found B.T. committed the statutory grounds supporting terminating her

parental rights and that terminating B.T.’s parental rights was in the children’s best interests. B.T.

only appealed the best interest of the children finding.

Having reviewed the evidence, we conclude it was legally and factually sufficient to

support the trial court’s finding by clear and convincing evidence that termination of B.T.’s

parental rights to K.R.E.T., C.R.A., D.S.T., and M.J.T. was in each child’s best interest.

Accordingly, we overrule B.T.’s sole issue on appeal and affirm the trial court’s order.

Patricia O. Alvarez, Justice

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