in the Interest of D.D.D.K., C.E.K., Jr. and C.E.K., Children

NO. 07-09-0101-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 1, 2009

______________________________

IN THE INTEREST OF D.D.D.K., C.E.K., JR. AND C.E.K., CHILDREN

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 74491-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINON

Appellants, Charles and Nancy, appeal from a final order terminating their parental

rights to their three minor children, D.D.D.K., C.E.K., Jr., and C.E.K.1 They assert: (1) the

trial court abused its discretion by admitting hearsay statements of sexual abuse;2 and (2)

1
To protect the privacy of the parties in this case, we identify the children by their initials, the m other
by the pseudonym “Nancy,” and the father by the pseudonym “Charles.” See Tex. Fam . Code Ann. §
109.002(d) (Vernon 2002); Tex. R. App. P. 9.8(b)(1).

2
Only Charles asserts this point of error.
the evidence is legally and factually insufficient to support the trial court’s findings that: (a)

Appellants knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endangered the physical or emotional well-being of the children; (b)

Appellants engaged in conduct or knowingly placed the children with persons who engaged

in conduct which endangered the physical or emotional well-being of the children; and (c)

termination of the parent-child relationship is in the children’s best interest. We affirm.

Background

Nancy and Charles were married in November 1999. They had three children:

D.D.D.K., C.E.K., Jr., and C.E.K.3 On July 25, 2007, the Department of Family and

Protective Services (“the Department”) filed an original petition for termination of their

parental rights pursuant to section 161.001(1)(D) and (E) of the Texas Family Code.4 The

following evidence was adduced during the final termination hearing held December 9,

2008, and January 13, 2009.

In 2005, Charles and Nancy had been separated for a year. Nancy was living in

Dallas. Charles was living with his mother while his children were staying with his

grandmother. Charles’s brother, Glen, also stayed at his grandmother’s house.

3
D.D.D.K and C.E.K. are fem ales and C.E.K., Jr. is m ale. At the tim e of trial, D.D.D.K., C.E.K., Jr.
and C.E.K. were nine, seven, and six years of age, respectively.

4
For convenience, future citation to provisions of the Texas Fam ily Code will be sim ply “section __”
or “§ __.” Likewise, future citation to these subsections of the Fam ily Code will be sim ply “subsection(D)”
and/or “(E).”

2
 When Charles returned from serving two weeks in jail for overdue traffic tickets, his

children accused Glen of molesting them. Charles reported the molestation and took the

children to The Bridge–Children’s Advocacy Center in Amarillo. Becky O’Neal, registered

nurse and sexual assault nurse examiner, performed a SANE examination on each child.

During the examination, she thought it unusual that each child assumed the knee-chest

position with their head on the table and buttocks stuck up in the air without any guidance.

She further testified all three children had immediate dilation of the anus which indicated

their anus was being opened frequently to allow something to be inserted. O’Neal believed

the children had been sexually assaulted multiple times.5 Charles subsequently took the

children to stay at the Salvation Army. Nancy returned to Amarillo and reunited with

Charles.

In Fall 2006, Charles was laid off from his job. Nancy was using a substantial

amount of cocaine. Although Charles found temporary work, he quit in order to care for

the children because Nancy was unable. Later, he exhausted his unemployment

compensation and the family was living from motel to motel. Neither parent worked and

both parents were using drugs. Their only source of income was money Nancy received

from her relatives.

In May 2007, the family moved to the Ritz Motel and were staying in a single room

with two king-size beds. On July 23, Charles and Nancy smoked crack cocaine in their

5
Glen was later charged and convicted of m olesting the children.

3
bathroom while the children were asleep. Nancy then watched television and Charles went

to bed. Before 4:00 a.m., Charles left the motel room to get something to eat at a nearby

restaurant. Shortly thereafter, Nancy left the room to smoke a cigarette. As they left, both

parents noticed the tenants across the hall were awake, had their door open, and noticed

them leaving. Furthermore, both parents knew the persons staying across the hall were

drug users because they would sometimes pool their money in order for Charles to

purchase drugs for them.

When Nancy returned ten to fifteen minutes later, C.E.K. was jumping up and

down—whining. C.E.K. said someone had touched her and pointed to the room across

the hall. Nancy waited for Charles to return approximately twenty minutes later. Charles

looked at C.E.K. and knew something was not right. He suspected a homeless person

who stayed across the hall with the couple living there. He confronted them and they

denied being in Charles’s room. Charles then readied the children for school and took

them to a fast-food restaurant to eat breakfast. After dropping D.D.D.K. and C.E.K., Jr. at

school, he returned to the motel and packed their belongings. He also gathered bed linens

that might contain evidence of the sexual assault and drove to Walmart where he

purchased q-tips and swabbed C.E.K. in the parking lot. He then drove C.E.K. to the

hospital arriving at 10:30 a.m. Nancy accompanied them throughout but was asleep most

of the time.

4
 After initially examining C.E.K., the other two children were brought in for a sexual

assault examination. Nurse O’Neal examined all three children. According to O’Neal’s

testimony, C.E.K. had an acute tear to the hymen and an abrasion with redness on the

face of the hymen. D.D.D.K. had an abrasion at the base of the hymen. She classified the

girls’ trauma as acute occurring within the last seventy-two to ninety hours. She opined the

trauma was caused by penetration of their sexual organs. She also determined all three

children had immediate dilation of their anuses; and, in her opinion, had been sexually

assaulted on more than one occasion. She further opined that the dilation was not the

result of the prior assaults in 2005 because their sphincter tone would have returned if

there had been no penetration since that time.

Kari Neeley, an investigator for Child Protective Services, interviewed Nancy and

Charles. Due to their behavior, Neeley suspected they were on drugs. She asked each

of them to take a drug test. Initially, they refused but Neeley eventually convinced them

to permit her to take a hair sample for analysis. Samples were also taken from the three

children. All the samples, including those from the children, tested positive for cocaine.

C.E.K., Jr.’s sample also showed the presence of methamphetamine.

Following the hospital visit, the children were placed in foster care and counseled

by Sarah Lynn Jennings, a therapist and counselor. At the time, C.E.K. was four years,

nine months old but functioning as a three year, one month old. Jennings met with C.E.K.

for forty counseling sessions and D.D.D.K. for thirty sessions.

5
 During the sessions, both girls confided in Jennings that they had been sexually

abused at the motel multiple times by strange men while their parents were in the same

room. C.E.K. indicated the activity occurred when men were giving her parents money.

C.E.K. also told Jennings that Charles had touched her twice in the vagina. C.E.K.

indicated she did not want to go back to the motel because “it is not safe there–I get hurted

there in my privates by the mens.”

D.D.D.K. confided she was hurt in the vagina and anus by strange men in the

bedroom and shower. She told Jennings that her parents just turned away and talked

when the men were doing these things to her. She also described being scared, hiding

under the furniture to avoid men, and eating bugs and trash. She was angry and confused

that her parents would remain in the room and do nothing while the men were hurting her.

C.E.K. and D.D.D.K. told their caseworkers that they were afraid and did not want to return

to the motel.

After the children entered foster care, D.D.D.K. and C.E.K. suffered from enuresis.

Recently, D.D.D.K. stopped wetting the bed while C.E.K. was still wearing diapers at night.

Both children repeatedly stimulated themselves and reportedly humped the bed. D.D.D.K.

sexually acted out with a male child on two occasions. C.E.K. threw uncontrollable fits and

at times was almost unconsolable. Jennings indicated the children had no bonds with

anyone.

6
 Jennings opined that, although D.D.D.K. and C.E.K. indicated they continued to love

and miss their parents, both children continued to fear they would not protect them. She

opined that, because the abuse occurred in the parents’ presence, seeing Charles and

Nancy would be detrimental psychologically for the children because the children would

likely feel afraid and unsafe in their presence. Accordingly, she recommended the parents

not even receive visitation.

Jennings also testified the children were presently in environments where they

could safely develop relationships with all their needs met. She recommended the children

continue with therapy and believed a loving, therapeutic environment might possibly avoid

the necessity of more intensive services. Her understanding from speaking with the

children was they did not want to return to Charles and Nancy because of the abuse that

occurred in their parents’ presence and their failure to protect them. She opined that

termination would provide the safety the children needed.

Charles denied ever sexually abusing or prostituting his children. He admitted using

drugs and stated that he “could have been a little bit more alert because drugs do dense

your senses.” He also testified that, when they were at the motel, his wife’s drug use

affected her ability to care for their children. He further testified he: (1) had been drug-free

for a year; (2) was working two jobs; (3) currently attended Alcoholics Anonymous; (4)

attended church and received counseling from his pastor who was also his mentor; (5)

lived alone in a one-bedroom efficiency apartment; and (6) saved money to afford a larger

7
place for his children to live. On cross-examination, he testified he was uncertain whether

C.E.K. had been assaulted in the motel room, could not name his AA sponsor or identify

the twelve steps, indicated AA believed he was uncooperative because he would not admit

he was an addict, and claimed he was not an addict because he had found Christ. He

testified there was “no chance he [would] fall again as long as [he] can walk in the spirit of

God . . . .”

Nancy testified that, with the exception of the incident with Uncle Glen, she was

uncertain whether the children were molested. She testified the last time she used drugs

was September 19, 2008, the day of her arrest for possession of cocaine. Prior to her

arrest, she filed a false complaint against her husband for assault in order to obtain income

tax money to buy drugs, at a time when they owed back rent and their utilities had been

turned off. She also testified her drug use did not affect her parenting skills and she did

not make bad decisions while she was on drugs.

Her plan to turn the family around was to find a job after she was released from

prison, take the classes she failed to complete as required by the service plan, get the

family into church, undergo any necessary counseling, change her surroundings and the

persons she associated with, and give her life to Christ.

Constance Priest, the children’s caseworker, indicated all three children were

receiving counseling and their placements were stable. After C.E.K., Jr. recently exhibited

8
assaultive behavior toward other children and his foster mother, however, he was being

transferred to a residential treatment center.

The Department’s current plan for the children was unrelated adoption. Priest

recommended the children not be returned to Charles and Nancy because two of the three

children implicated their parents in sexual abuse and remained relatively unstable nearly

a year and a half after coming into foster care due to their exposure to drugs and sexual

abuse. Further, although the Department initially sought placement with relatives, there

were no relatives willing or interested. D.D.D.K.’s foster parents, however, have expressed

an interest in adoption.

Although Priest noted Charles had completed many recommended services,6 she

also testified Charles had not fully cooperated with CPS. She indicated: (1) he failed to

contact her regarding a requested drug test, (2) failed to maintain contact in order to avoid

scheduling drug screenings between January 2008 and October 2008, and (3) failed to

follow recommendations following his psychological examination. When Charles was

asked about counseling, he told Priest “[c]ounseling is the work of the devil . . . .”

6
Charles attended a required class on alcoholism and drug abuse, underwent a psychological
evaluation, and a sexual abuse education class.

9
 At the conclusion of the proceeding, the trial court issued an order terminating

Charles’s and Nancy’s parental rights. On request, the trial court issued its findings of fact

and conclusions of law.7

Discussion

Charles asserts D.D.D.K’s and C.E.K.’s hearsay statements of sexual abuse should

have been excluded because the children’s testimony was unreliable. Charles and Nancy

also assert the evidence was legally and factually insufficient to support the trial court’s

findings that Appellants knowingly placed or knowingly allowed the children to remain in

7
The findings of fact state, in pertinent part, as follows:

3. At the tim e the children were rem oved, the children and parents were living in a
m otel room and had been living in hotel room s and shelters for several m onths
leading up to the rem oval.
4. At the tim e of the rem oval neither Respondent Charles nor Respondent Nancy were
em ployed and both depended on relatives to provide for their fam ily.
5. Drug tests perform ed on D.D.D.K. and C.E.K. on August 3, 2007, returned positive
for cocaine.
6. The drug test perform ed on C.E.K., Jr., on August 3, 2007, returned positive for
m etham phetam ine and cocaine.
7. Drug tests perform ed on Respondents Charles and Nancy taken on July 27, 2007,
returned positive for cocaine.
8. Respondents Charles and Nancy used “crack” cocaine around the children.
9. Respondents Charles’s and Nancy’s drug use negatively affected their ability to
provide a safe and stable hom e for their children.
10. The children the subject of this suit have been sexually assaulted on m ore than one
occasion while Nancy and Charles were present.
11. The children are in foster care.
12. The children are participating in counseling.
13. The children’s placem ents are stable.
14. The children’s needs are being m et.
15. The Departm ent has m ade a diligent effort to locate relatives of the children who
would be willing and able to provide for the children.

10
conditions or surroundings which endangered the physical or emotional well-being of the

children, or engaged in conduct or knowingly placed with persons who engaged in conduct

which endangered the physical or emotional well-being of the children. Finally, Charles

and Nancy assert the trial court erred in its determination that termination of the parent-

child relationship was in the children’s best interest.

I. First Point of Error — Hearsay Statements

The Texas Family Code permits the admission of hearsay statements by child

abuse victims in termination-of-parental-rights proceedings. See Tex. Fam. Code Ann. §

104.006 (Vernon 2008). Section 104.006 provides that, under certain circumstances, a

statement made by a child twelve years of age or younger that describes sexual abuse

against a child is admissible. The statute allows admission of such a statement, providing:

(1) the court finds the time, content, and circumstances of the statement provide sufficient

indicia of the statement’s reliability, and (2) the child testifies or is available to testify at the

proceeding in the court, or in any manner provided for by law, or the court determines that

the use of the statement in lieu of the child’s testimony is necessary to protect the welfare

of the child.

Whether a trial court erred in admitting hearsay evidence under section 104.006

depends on whether it abused its discretion, e.g., failed to follow controlling rules and

principles or the decision to admit the evidence lacked evidentiary support. In re P.E.W.,

105 S.W.3d 771, 774 (Tex.App.–Amarillo 2003, no pet.).

11
 Charles asserts the trial court abused its discretion in admitting the evidence

because D.D.D.K’s and C.E.K.’s statements were obtained through the use of leading

questions and the result of coaching by their foster parents. He also asserts the

statements are unreliable because the children are functioning at less than their age levels

and he reported incidents of sexual abuse in 2005 and 2007.

Jennings was qualified as an expert without objection.8 She has seen D.D.D.K. and

C.E.K. in counseling sessions thirty to forty times respectively over a period of months.

She testified the children’s statements were reliable and accurate because their accounts

of sexual abuse were consistent when told on multiple occasions and the children had not

seen each other for extended periods of time. Each child was telling the same story and

the stories continued to come out over time.

She also testified the children’s statements were consistent with what she had

learned about the children while counseling them. She testified their accounts of sexual

abuse disclosed information related to sex that a child of their age would not normally

know. Further, she was not troubled that the statements were inconsistent with other

statements following the 2007 incident because it was not uncommon for children who had

endured such abuse to open up later when they are less afraid.

8
Jennings is a licensed professional counselor who has been practicing since 2003. In 2007, she was
licensed as an LPC Supervisor. She holds a bachelor’s in psychology and a m aster’s in professional
counseling. She has taken num erous courses over the years on child sexual abuse, its sym ptom s and
effects.

12
 The children’s statements were also corroborated by SANE Nurse O’Neal who

examined the two girls shortly after they left the motel. She testified both girls suffered

from acute trauma to their sexual organs and had immediate dilation of the anus indicating

multiple sexual assaults had occurred. That the children were acting out sexually after

removal, stimulating themselves and exhibiting predatory behavior also corroborates their

testimony. Moreover, there is no evidence of record that either child had a history of telling

falsehoods or that either child was motivated to not tell the truth.

Charles asserts the statements were not in the children’s “language” and were

coached by the foster parents through leading questions.9 Jennings testified that, in her

opinion, the children’s statements were not coached and the foster parents had complied

with requests on how to follow up on the children’s statements with questions that were not

leading. It is well established that, in a bench trial, the judge as the trier of fact weighs the

evidence, assesses the credibility of witnesses and resolves conflicts and inconsistencies.

Intec Systems, Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex.App.—Dallas 2007, no pet. h.).

Thus, whether Charles or the children were to be believed was a credibility determination

best left to the trier of fact.10

9
Charles also challenges whether the foster parent’s m otivation to adopt influenced the children’s
statem ents. The reliability of a foster parent is not inherently suspect. In re M.R., 243 S.W .3d 807, 814
(Tex.App.–Fort W orth 2007, no pet.). Further, the reliability referred to in section 104.006 is the reliability of
the child’s declaration, not the witness relaying the child’s declaration. Id. W here the challenge is to the
credibility of the foster parent because of their m otivation to adopt, the trier of fact is the judge of credibility.
Id.

10
Apparently, the trial court found the children’s hearsay statem ents m ore credible than either Charles
or Nancy’s testim ony. Paragraph ten of the trial court’s findings of fact states that “[t]he children the subject
of this suit have been sexually assaulted on m ore than one occasion while Nancy and Charles were present.”

13
 Charles next asserts the children’s statements are unreliable because they were

functioning at less than their age levels. He also asserts their statements that he was

present when any sexual abuse occurred is refuted by his testimony that he reported the

incidents of sexual abuse in 2005 and 2007. The only evidence creating a nexus between

the functionality of the children’s age levels and the reliability of their statements is

Jennings’s expert testimony that the children’s statements were accurate and reliable.

Next, whether Charles’s reporting of the incidents in 2005 and 2007 renders the children’s

statements unreliable is a question best determined by weighing the evidence. This

determination is best made by the trier of fact–in this instance, the trial court; and,

apparently, the trial court did not find their testimony unreliable as evidenced by its findings

of fact.

“In sum, although the outcry statements were not definite as to time, the specificity

of the content and circumstances existing at the time of the outcr[ies] demonstrate the

statements’ veracity.” In re M.R., 243 S.W.3d 807, 815 (Tex.App.–Fort Worth 2007, no

pet.). Furthermore, there is evidence of record “touching upon various indicia which courts

often use to assess the reliability of a child’s outcry.” Id. See also Idaho v. Wright, 497

U.S. 805, 821, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Norris v. State, 788 S.W.2d 65,

71 (Tex.App.–Dallas 1990, writ ref’d).

14
 After considering the evidence before the trial court, and the statutory prerequisites

under section 104.006, we cannot say the trial court abused its discretion in admitting

Jennings’s testimony regarding D.D.D.K.’s or C.E.K.’s statements of sexual abuse.

Charles’s first point of error is overruled.

II. Legal and Factual Insufficiency

While a parent’s rights to his children are of constitutional magnitude; In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003), they are not absolute. In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). Due process requires the Department to justify termination of parental rights

by clear and convincing evidence. §§ 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256,

263 (Tex. 2002).11 The higher burden of proof in termination cases elevates the appellate

standard of both legal and factual sufficiency review. See In re J.F.C., 96 S.W.3d at 264-

65; In re C.H., 89 S.W.3d at 25. In conducting a legal sufficiency review in a termination-

of-parental-rights proceeding, a court must review all the evidence in the light most

favorable to the verdict and determine whether the evidence is such that a fact finder could

reasonably form a firm belief or conviction that the grounds for termination were proven.

In re J.F.C., 96 S.W.3d at 265-66.

11
Clear and convincing evidence is “the m easure or degree of proof that will produce in the m ind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” §
101.007; In re J.F.C., 96 S.W .3d at 264. W hile the proof m ust be m ore than m erely the greater weight of the
credible evidence, there is no requirem ent that the evidence be unequivocal or undisputed. State v.
Addington, 588 S.W .2d 569, 570 (Tex. 1979).

15
 In conducting a factual sufficiency review of a finding in a termination-of-parental-

rights proceeding, we consider the entire record including evidence supporting and

contradicting the finding and determine whether a fact finder could reasonably form a firm

belief or conviction about the truth of the matter on which the State bears the burden of

proof. Id.; In re C.H., 89 S.W.3d at 25-26. “If, in light of the entire record, the disputed

evidence that a reasonable fact finder could not have credited in favor of the finding is so

significant that a fact finder 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.

A. Termination of Parental Rights

In proceedings to terminate the parent-child relationship under section 161.001, the

Department must establish one or more of the acts or omissions enumerated under section

161.001(1) of the statute and must also prove that termination is in the best interest of the

child. § 161.001; In re S.M.L.D., 150 S.W.3d 754, 756 (Tex.App.–Amarillo 2004, no pet.).

However, while both elements must be established; Tex. Dep’t of Human Services v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987), only one finding under section 161.001(1) is necessary

to support a judgment of termination. In re W.E.C., 110 S.W.3d 231, 239-40

(Tex.App.–Fort Worth 2003, no pet.).

Here, the trial court found that Charles and Nancy had knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which endangered

the physical or emotional well-being of the children and that they also engaged in conduct

16
or knowingly placed the children with persons who engaged in conduct that endangered

the children’s physical or emotional well-being. See § 161.001(1)(D), (E). Both

subsections (D) and (E) require proof of endangerment, which means to expose to loss or

injury, or to jeopardize a child’s emotional or physical health. Boyd, 727 S.W.2d at 533.

While endangerment means more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal family environment, it is not necessary that the conduct be

directed at the child or that the child suffer actual physical injury. In re A.B., 125 S.W.3d

769, 776-77 (Tex.App.–Texarkana 2003, pet. denied); Doyle v. Texas Dep’t of Protective

and Regulatory Services, 16 S.W.3d 390, 394 (Tex.App.–El Paso 2000, pet. denied).

Subsections (D) and (E) differ in one respect: the source of the physical or

emotional endangerment to the child. Subsection (D) requires a showing that the

environment in which the child is placed endangered the child’s physical or emotional

health, id., whereas, Subsection (E) requires that the cause of the endangerment be the

parent’s conduct alone, as evidenced not only by the parent’s actions but also by the

parent’s omission or failure to act. Doyle, 16 S.W.3d at 395.

The law does not require that the child be a victim of abusive conduct before the

Department can involuntarily terminate a parent’s rights to the child. In re C.J.F., 134

S.W.3d 343, 350 (Tex.App.–Amarillo 2003, no pet.). “Rather, if the evidence shows a

course of conduct which has the effect of endangering the emotional well-being of the

child, a finding under section 161.001(1)(E) is supportable.” Id.

17
 1. Second Point of Error – Environmental Endangerment

Conduct of a parent or another person in the home can create an environment that

endangers the physical and emotional well-being of a child as required for termination

under subsection (D). In Interest of W.S., 899 S.W.2d 772, 776 (Tex.App.–Fort Worth

1995, no writ). Parental knowledge that actual endangering conduct has occurred is not

necessary; it is sufficient that the parent was aware of the potential for danger and

disregarded the risk. In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.–Houston [14th Dist.]

2005, no pet.); In re S.G.S., 130 S.W.3d 223, 238 (Tex.App.–Beaumont 2004, no pet.); In

re A.B., 125 S.W.3d at 775. Inappropriate, abusive, or unlawful conduct by persons who

live in the child’s home or with whom the child is compelled to associate on a regular basis

in his or her home represents a part of the “conditions or surroundings” of the child’s home

under subsection (D). In Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.–Fort Worth

2009, no pet.). The child is not required to suffer injury and the parent’s conduct need not

be directed at the child. In re M.C.T., 250 S.W.3d 161, 169 (Tex.App.–Fort Worth 2008,

no pet.).

As a general rule, conduct that subjects a child to a life of uncertainty and instability

endangers the physical and emotional well-being of a child. In re R.W., 129 S.W.3d 732,

739 (Tex.App.–Fort Worth 2004, pet. ref’d). Without question, sexual abuse is conduct

that endangers a child’s physical or emotional well-being. In re L.C., 145 S.W.3d 790, 796

(Tex.App.–Texarkana 2004, no pet.). Moreover, “evidence of sexual abuse of one child

18
is sufficient to support a finding of endangerment with respect to other children.” In re

R.W., 129 S.W.3d at 742. Thus, D.D.D.K.’s and C.E.K’s outcries of repeated sexual abuse

at the motel by the strange men in the presence of their parents established surroundings

which endangered the children12 including C.E.K., Jr.13

Furthermore, the record shows endangering conditions other than those relating to

sexual abuse. A parent’s drug use and its effect on a parent’s life and his or her ability to

parent may also establish an unstable home environment for a child. In re Z.C., 280

S.W.3d 470, 474 (Tex.App.–Fort Worth 2009, pet. denied); Vasquez v. Texas Dep’t of

Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex.App.–Houston [1st Dist.] 2005,

pet. denied). The endangerment to these children is no where more self-evident than

their positive drug tests taken shortly after leaving the motel. In addition, Charles testified

the drugs he used at the motel dulled his senses and affected Nancy’s ability to care for

the children.

12
Charles and Nancy contend that the hearsay testim ony of the children alone cannot m eet the
standard of clear and convincing evidence. The interm ediate standard of clear and convincing evidence falls
between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt
standard utilized in crim inal proceedings. In re E.M.E., 234 S.W .3d 71, 73 (Tex.App.–El Paso 2007, no pet.).
In crim inal cases, where the victim is seventeen years of age or younger, the uncorroborated testim ony of the
victim alone is sufficient to support a conviction for sexual assault. Tex. Code Crim . Proc. Ann. art. 38.97(a),
(b)(1) (Vernon 2005). See Empty v. State, 972 S.W .2d 194, 196 (Tex.App.–Dallas 1998, pet. ref’d); Karnes
v. State, 873 S.W .2d 92, 96 (Tex.App.–Dallas 1994, no pet.). A child victim ’s outcry statem ent alone can also
be sufficient to support a conviction for sexual assault. Kimberlin v. State, 877 S.W .2d 828, 831
(Tex.App.–Fort W orth 1994, pet. ref’d) (citing Rodriguez v. State, 819 S.W .2d 871, 873 (Tex.Crim .App. 1991).

13
Although the record did not contain evidence of any outcry by C.E.K., Jr., his SANE exam ination
in 2007, following C.E.K.’s assault, revealed an im m ediate dilation of the anus indicating he had been sexually
assaulted m ore than once.

19
 Additionally, Charles may have unreasonably delayed taking C.E.K. to the hospital

after he learned of the sexual assault. In fact, after learning of the assault, Charles and

Nancy delayed nearly six and one-half hours before taking C.E.K. to the hospital. Neither

parent called the police and both appeared to be under the influence of a controlled

substance at the hospital when interviewed by the CPS investigator. The subsequent drug

test confirmed there was cocaine in their system. From this evidence, the fact finder could

reasonably form a firm belief that Charles and Nancy delayed reporting the assault to avoid

the detection of drugs in the motel room and/or to use drugs between the time they learned

of the assault and when they took C.E.K. to the hospital.

Nancy contends there was no evidence that C.E.K.’s assault occurred as a result

of her drug use. The Department need not prove Nancy’s actions were directed at the

children or the children actually suffered injury as a result of her conduct. Boyd, 727

S.W.2d at 533. The specific danger to the child’s well-being may be inferred from the

parental misconduct. Toliver v. Texas Dep’t of Family and Protective Service, 217 S.W.3d

85, 98 (Tex.App.–Houston [1st Dist.] 2005, no pet.). Prior to the incident, Nancy had been

watching television for hours14 when her husband left to get something to eat. She then

left her children alone in a motel room at 4:00 a.m. to smoke a cigarette knowing drug

users directly across the hall were awake, had their door open, and observed her leaving.15

14
An activity Charles testified she often engaged in when she was under the influence of drugs.

15
Charles also testified that, when he left to get som ething to eat at approxim ately 4:00 a.m ., the
persons across the hall observed him leaving through their open door.

20
Moreover, except to equivocate and profess ignorance, neither Charles nor Nancy offered

any rational explanation why, in addition to C.E.K., D.D.D.K. also suffered acute trauma

to her sexual organs in the preceding seventy-two to ninety hours and all of the children

showed signs of having undergone multiple anal sexual assaults.

Based on the foregoing evidence, we conclude the evidence was sufficiently clear

and convincing to support the trial court’s finding on this point. Looking at the evidence in

a light most favorable to the finding of the trial court, we conclude a reasonable trier of fact

could have formed a firm conviction that Charles and Nancy knowingly placed or allowed

their children to remain in conditions or surroundings that endangered their physical or

emotional well-being. Also, the disputed evidence on the matter is not so significant that

the trial court could not have formed a firm belief or conviction that its finding was true.

Charles’s second point of error and Nancy’s first issue are overruled.

2. Third Point of Error - Endangerment By Parental Act Or Omission

While we recognize that an affirmative finding by clear and convincing evidence

satisfying one of the subsections of section 161.001(1) is sufficient to terminate parental

rights, see In re S.F., 32 S.W.3d 318, 320 (Tex.App.–San Antonio 2000, no pet.), in the

interest of fairness and certainty, we will address issues under (E) as well. See In re A.B.,

125 S.W.3d at 776.

21
 A parent’s refusal to acknowledge responsibility for the child and protect him or her

from a situation that exposes the child to the risk of sexual abuse is grounds for termination

of parental rights under subsection (E). See In re L.C., 145 S.W.3d at 797-98; In re

J.M.C.A., 31 S.W.3d 692, 697-98 (Tex.App.–Houston [1st Dist.] 2000, no pet.); Lakes v.

Texas Dep’t of Human Services, 791 S.W.2d 214, 216 (Tex.App.–Texarkana 1990, no

writ).

Furthermore, drug addiction and its effect on a parent’s life and ability to parent may

also establish an endangering course of conduct. Latham v. Department of Family and

Protective Services, 177 S.W.3d 341, 348-49 (Tex.App.–Houston [1st Dist.] 2005, no pet.);

In re S.M.L.D., 150 S.W.3d at 758; In re R.W., 129 S.W.3d at 739. This is particularly so

where drug use continues even though the parent is aware that his or her parental rights

are in jeopardy. Latham, 177 S.W.3d at 348. Moreover, although mere imprisonment may

not be conduct that endangers the emotional and physical well-being of a child,

imprisonment as a result of a detrimental course of conduct endangering the child, such

as using illegal drugs, will establish facts sufficient to meet the requirement of subsection

(E). See In re S.M.L.D., 150 S.W.3d at 759; In re S.F., 32 S.W.3d 318, 322

(Tex.App.–San Antonio 2000, no pet.).

The record here supports the trial court’s conclusion that both Charles and Nancy

had notice of sexual abuse to D.D.D.K. and C.E.K. The children testified that, while they

were at the motel, strange men engaged in sex acts with them while their parents were in

22
the room and C.E.K. testified the strange men gave their parents money. Further, Charles

had been out of work for nearly six months and Nancy was unemployed. Both parents

were using drugs and had daily drug habits16 costing between eighty to a hundred dollars

per day for both while their only source of income was money from their families. When

the children were examined at the hospital following the assault, they all showed signs of

being sexually assaulted more than once. In addition to C.E.K. having recent acute trauma

to her sexual organs, D.D.D.K.’s sexual organs also showed similar trauma. Further,

neither parent offers any rational explanation for the injuries suffered by their children,

equivocate whether they believe the children suffered any sexual abuse at all other than

the single episode involving C.E.K. and dismiss D.D.D.K.’s and C.E.K.’s outcries as

coached.17

After the Department filed suit to terminate Nancy’s parental rights, she continued

to engage in the course of conduct that had previously endangered her children. That is,

she continued using cocaine and only four months prior to the final hearing pled guilty to

possession of cocaine and was imprisoned. Moreover, her drug use is directly related to

her incarceration and subsequent inability to care for the children. Remarkably, at the final

16
The parents’ frequency of drug use was difficult to pin down from their testim ony, however, both
indicated they used on weekends, and som etim es during the week.

17
At the very least, the parents’ testim ony dem onstrated a lack of awareness of both the conduct
being perpetrated on their children as well as the im pact that it had on them . Given the extent of the evidence
of sexual abuse to their children in 2007, a fact finder could reasonably form a firm belief that their lack of
awareness, if their testim ony is to be believed, was due to their drug use.

23
hearing, Nancy testified she “did not make bad decisions on drugs,” “[drugs] really do not

have an effect on [her],” and “she does not think she has a drug problem.”

Further, the record reflects that Charles was aware of Nancy’s drug abuse but did

nothing about it. Rather, he also abused drugs. Charles testified he had last used cocaine

in January of 2008, almost six months after the Department filed suit to terminate his

parental rights. To his credit, he is working two jobs, has stayed drug-free for nearly a

year, and has cooperated with the Department to the extent that he completed many

required services.18 Nevertheless, despite Charles’s testimony that he stopped abusing

narcotics and progressed forward, the trial court was entitled to infer, based on evidence

that he failed to appreciate the need for treatment, that his substance abuse issues would

continue and would further jeopardize the children’s well-being. Between January 2008

and October 2008, Charles failed to maintain contact with CPS to schedule drug

screenings and did not respond to a specific request for a drug screen. Charles has also

exhibited a negative attitude towards counseling–labeling it the “work of the devil.” Further,

although he professes to attend AA meetings, he has no sponsor, cannot name the twelve

steps and doesn’t know which step he is on. Perhaps more telling, Charles testified at the

termination hearing that he “was really over those steps.”

18
Although Charles has com pleted m any of the required services, substantial com pliance with a
service plan does not prevent term ination of parental rights. In re A.C.B., 198 S.W .3d 294, 298
(Tex.App.–Am arillo 2006, no pet.) (collected cases cited therein).

24
 Based upon this record, the evidence was sufficiently clear and convincing to

support the trial court’s findings that the children had been sexually assaulted on more than

one occasion while Charles and Nancy were present and their drug use negatively affected

their ability to provide a safe and stable home for their children. Viewing the evidence in

a light most favorable to the trial court’s findings, we conclude a reasonable trier of fact

could have formed a firm belief or conviction that its findings were true. Additionally, the

disputed evidence that a reasonable fact finder could not have credited in favor of the

finding is not so significant to prevent it from forming a firm belief or conviction, making the

evidence legally and factually sufficient. Charles’s third point of error and Nancy’s second

issue are overruled.

B. Best Interest of the Child

A “best interest” finding does not require evidence on any certain set of factors, nor

does it limit the factors a fact finder may consider. Wilson v. State, 116 S.W.3d 923, 929

(Tex.App.–Dallas 2003, no pet.). We consider the following non-exclusive factors: (1) the

child’s desires; (2) the child’s present and future emotional and physical needs; (3) present

and future emotional and physical danger to the child; (4) parenting abilities of one seeking

custody; (5) available assistance programs to promote the child’s best interest; (6) plans

for the child by one seeking custody; (7) stability of the home or proposed placement; (8)

acts or omissions of a parent indicating the parent-child relationship is improper; (9) any

excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

25
1976). See In re A.C.B.,198 S.W.3d at 298. The Holley factors are not exhaustive, and

there is no requirement that the Department prove all factors as a condition precedent to

parental termination. See In re C.H., 89 S.W.3d at 27. Further, the best interest analysis

evaluates the best interest of the child, not that of the parent. Holley, 544 S.W.2d at 372.

Although there is no direct evidence concerning the children’s desires, Jennings,

their therapist and counselor, testified the children did not want to return to their biological

parents because of the abuse that occurred in their parents’ presence and their failure to

protect them. Jennings testified the children were fearful of their parents and felt no one

could protect them. She recommended against parental visitation because she believed

seeing their parents would be detrimental to the children psychologically. Accordingly, this

factor weighs in favor of termination.

All of the children require a safe and stable environment to continue the process of

building trust and relationships with others that foster feelings of security. The children

require counseling in conjunction with placement in a therapeutic foster home or residential

treatment center. It would be unrealistic to believe the biological parents could continue

the children’s treatment or meet their physical needs while Nancy is in prison and Charles

is working two jobs. This is particularly so in the absence of any evidence of a competent,

family support network. In addition, based on both parents’ reactions to D.D.D.K.’s and

C.E.K.’s outcries, it appears both parents are ill-equipped to respond to any future

26
emotional needs resulting from the sexual abuse. This factor also weighs in favor of

termination.

The same evidence we held was legally and factually sufficient to support the trial

court’s findings that termination was appropriate supports a finding that termination is in

the best interest of the children because both parents present future emotional and

physical dangers to the children. See In re C.H., 89 S.W.3d at 28; In re M.G.D., 108

S.W.3d at 511. The children were repeatedly exposed to sexual abuse; Green v. Texas

Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213, 221 (Tex.App.–El Paso 2000, no

pet.) (“sexual abuse is a significant factor in determining whether termination is in the best

interest of the child”), and parental drug abuse. In re M.R., 243 S.W.3d at 820 (drug abuse

is a factor in analysis of child’s best interest). These facts weigh in favor of termination.

Evidence concerning their parenting abilities and failure to use available programs

also suggests termination is in the children’s best interests. The record reveals that both

parents continued to use drugs after their parental rights were in jeopardy. Only after

entering prison was Nancy able to curb her drug use. Although Nancy testified to her

current intent to seek drug rehabilitation once she is released from prison, there are no

assurances, nor can there be, that she will enter, or complete, such a program and remain

a sober and responsible mother to these children. Charles has shown some improvement

but, based on evidence of his uncooperative attitude toward counseling and the relatively

short time he has remained drug-free, the trial court was entitled to infer that his substance

27
abuse might resume and further jeopardize the children’s well-being. Further, based upon

the evidence of record of sexual abuse and the parents’ reactions to their children’s

outcries, the trial court was entitled to infer that the parents would not take full advantage

of programs available to assuage the effects of such abuse.

That neither parent has a specific plan for the children if they received custody also

weighs in favor of termination. See In re S.M.L.D., 150 S.W.3d at 761. Without more,

Nancy indicated she wanted her children to join a church and go to counseling. Putting

aside Charles’s drug abuse issues for a moment, he also offered no concrete plan to assist

the children in overcoming the effects of past sexual abuse. Further, although he is saving

for a larger place to live, he could not tell the trial court how much was saved and

advanced no plan for obtaining an alternative dwelling.

Priest, the children’s case worker, testified the children were receiving counseling

and their placements were stable. Their plan was for unrelated adoption. She testified

that, during the prior year and one half the children had been in foster care, their stay had

been relatively unstable due to their exposure to sexual abuse and drug use while living

with their parents. Although the children were currently in therapeutic foster homes,19

C.E.K., Jr. was recently transferred to a residential treatment center because of assaultive

behavior. The Department initially sought placement with relatives but no relatives were

19
D.D.D.K. has been in a therapeutic foster hom e for two and one half m onths, C.E.K., Jr. for thirteen
m onths, and C.E.K. for three and one half m onths.

28
willing or interested. D.D.D.K.’s foster parents, however, have expressed an interest in

adoption. These facts also weigh in favor of termination.

From these facts, a fact finder could have formed a firm belief or conviction that

termination of Charles’s and Nancy’s parental rights was in the children’s best interests.

Accordingly, we hold that the evidence is legally and factually sufficient to support the trial

court’s finding that termination of their parental rights was in the children’s best interests.

Charles’s fourth point of error and Nancy’s third issue are overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

29