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NUMBER 13-02-292-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
IN THE INTEREST OF C.M.S. AND S.R.L., MINOR CHILDREN
On appeal from the County Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Castillo, and Chavez[1]
Opinion by Justice Castillo
This is an appeal from the judgment following a trial to the court in which the parental rights between appellant and her children, C.M.S. and S.R.L. were terminated. By two issues, appellant challenges the legal and factual sufficiency of the evidence to show that she knowingly engaged in conduct or knowingly allowed others to engage in conduct which endangered the children. We affirm.
As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. Tex. R. App. P. 47.1.
STANDARD OF REVIEW
Where a party appeals from a non-jury trial, it must complain of specific findings and conclusions of the trial court because a general complaint against a trial court=s judgment does not present a justiciable question. Fiduciary Mortgage Co. v. City Nat=l Bank of Irving, 762 S.W.2d 196, 204 (Tex. App.BDallas 1988, writ denied). In the present case, findings of facts or conclusions of law were not timely requested or filed. Thus, we must presume that the trial court found all fact questions in support of the judgment and affirm the judgment if we can uphold it on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977). When a reporter=s record is brought forward, as in this case, these implied findings are not conclusive and may be challenged by factual or legal sufficiency points the same as jury findings or trial court=s findings of facts. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)(citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)).
In evaluating the legal sufficiency of a termination of parental rights, we apply the standard for legal sufficiency traditionally applied in civil trials. In re A.L.S., 74 S.W.3d 173,178 (Tex. App.BEl Paso 2002, no pet. h.)(citing Edwards v. Dep=t of Protective & Regulatory Servs., 946 S.W.2d 130, 137 (Tex. App.BEl Paso 1997, no writ)). We review the legal sufficiency challenge by viewing the evidence in a light that tends to support the disputed finding and must disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). Where a party does not bear the burden of proof at trial, a Ano evidence@ standard of review is applied. Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.BCorpus Christi 1990, writ denied). Thus to prevail on a legal sufficiency complaint in a termination case, an appealing parent must demonstrate that there is no more than a scintilla of evidence to support the challenged finding. In re R.D., 955 S.W.2d 364, 368 (Tex. App.BSan Antonio 1997, pet. denied). If there is more than a scintilla of evidence to support a questioned finding, the Ano evidence@ point fails. Formosa Plastics Corp. USA v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
The standard of review for factual sufficiency of the evidence in a case involving the termination of parental rights is Awhether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State=s allegations.@ In re C.H., 45 Tex. Sup. Ct. J. 1000, 1005, 2002 Tex. LEXIS 113 (July 3, 2002). This is a heightened standard of review, compared with that applied to an appeal stemming from a traditional civil trial. Id. ATermination findings must be upheld against a factual sufficiency challenge if the evidence is such that a reasonable jury could form a firm conviction or belief that grounds exist for termination.@ Id. at 1000. Unlike our review for legal sufficiency, we must review all the evidence in conducting a factual sufficiency review. Id. at 1008.
As to both reviews, because the involuntary termination of parental rights interferes with fundamental constitutional rights, we must strictly scrutinize the termination proceedings. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980).
SUFFICIENCY OF THE EVIDENCE
A court may order the involuntary termination of the parent-child relationship under section 161.001 of the family code if it finds clear and convincing evidence[2] of two factors: (1) that the parent has violated any one of the statutory grounds set forth in section 161.001(1); and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. '161.001 (Vernon 2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984)(interpreting predecessor statute); Hann v. Tex. Dep=t of Protective & Regulatory Servs., 969 S.W.2d 77, 81 (Tex.BEl Paso 1998, pet. denied). Appellant does not challenge the sufficiency of the evidence as to the Abest interest of the child@ factor, but focuses solely on the sufficiency of the evidence to support the required finding of a statutory ground under section 161.001(1). Tex. Fam. Code Ann. '161.001(1)(Vernon 2002).
In the present case, the trial court found that clear and convincing evidence established grounds for termination under two subsections of 161.001(1), namely subsection (D) and subsection (E).[3] Tex. Fam. Code Ann. ''161.001(1)(D), (1)(E) (Vernon 2002). In her two issues, appellant argues that the evidence was legally and factually insufficient to support a finding under family code section 161.001(1)(E) that she had knowingly engaged in conduct or knowingly allowed others to engage in conduct which endangered the children=s physical or emotional well-being.[4] Appellant does not, however, challenge the sufficiency of the evidence to support the trial court=s finding under section 161.001(D) that she knowingly placed or allowed the children to remain in conditions or surroundings that endangered the physical or emotional well-being of the children.[5]
Where a trial court finds more than one ground for termination under section 161.001(1), and an appellant fails to challenge all of the section 161.001(1) findings of grounds for termination, any error made regarding the challenged findings under section 161.001(1) is harmless as the decree of termination would still be supported by the unchallenged findings. In re K.C., 23 S.W.3d 604, 607 (Tex. App.BBeaumont 2000, no pet.); Segovia v. Tex. Dep=t of Protective & Regulatory Servs., 979 S.W.2d 785, 787 (Tex. App.BHouston [14th Dist.]1998, pet. denied). Accordingly, in the instant case, regardless of the sufficiency of the evidence to support the trial court=s finding under section 161.001(1)(E), which appellant challenges, the decree of termination would still be supported by the trial court=s unchallenged finding under section 161.001(1)(D) and this alone would be sufficient to overrule both of appellant=s issues on appeal.[6]
Nevertheless, we do find that the evidence was legally and factually sufficient to support the trial court=s finding as to both sections 161.001(1)(D) and 161.001(1)(E). In doing so, we are mindful of the difference in proof required to support a finding based on subsection (D) versus that required to support a finding under subsection (E).
Subsection (D) refers only to the acceptability of a child=s living conditions or surroundings, not the conduct of the parent toward the child. In re S.H.A., 728 S.W.2d 73, 84 (Tex. App.BDallas 1987, writ ref=d n.r.e.). Under subsection (D), it must be the environment itself,[7] which causes the child=s physical or emotional well-being to be endangered, not the parent=s conduct.[8] Id. at 84-85. Thus subsection (D) can only be utilized as a ground for termination if the child is placed in conditions or surroundings that are themselves dangerous to his or her physical or emotional well-being; parental conduct alone is insufficient under this subsection. See In re T.L.H., 630 S.W.2d 441, 446 (Tex. App.BCorpus Christi 1982, writ dism=d w.o.j.) (interpreting predecessor statute with identical language). The environment must pose a real threat of injury or harm to the child, Williams v. Tex. Dep=t of Human Servs., 788 S.W.2d 922, 926 (Tex. App.BHouston [1st Dist.]1990, no writ), overruled on other grounds, In Re J.N.R, 982 S.W.2d 137, 143 (Tex. App.BHouston [1st Dist.] 1998, no pet.), and there must be proof of a direct causal connection between the environment the child is placed or allowed to remain in and the resulting danger to the child=s physical or emotional well-being in order for termination to be warranted under subsection (D). Ybarra v. Tex. Dep=t of Human Servs., 869 S.W.2d 574, 577-78 (Tex. App.BCorpus Christi 1993, no writ); In re S.H.A., 728 S.W.2d at 85. However, it is not necessary for the parent to have certain knowledge that an actual injury is occurring; it is enough that the parent be aware of the potential for danger to the child in such environment and disregarded that risk. In re Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.BTexarkana 2000, no pet.).
By contrast, when reviewing a finding under subsection (E), the focus is exclusively on the parent=s conduct, not the child=s environmental surroundings. In re P.S., 766 S.W.2d 833, 835 (Tex. AppBHouston [1st Dist.] 1989, no writ). Subsection (E) does not require that there be danger of physical harm; proof of conduct that endangers a child=s emotional well-being alone is sufficient. Tex. Fam. Code Ann. '161.001(1)(E)(Vernon 2002); In re S.H.A., 728 S.W.2d at 85. The cause of the danger to the child=s physical or emotional well-being, however, must be the parent=s conduct by way of actions, inactions, or omissions.[9] Id. Yet the specific danger to the child=s well-being need not be established as an independent proposition, but may be inferred from parental misconduct. Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Furthermore, it is not necessary that the conduct be directed at the child at issue[10] or that the child actually suffered injury. Id. AEndanger@ in this context means Ato expose to loss or injury; to jeopardize.@ Id. Thus, there is no requirement of any Aactual and concrete@ threat of injury to the child=s physical and emotional well-being. Id.; Dir. of Dallas County Child Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.BDallas 1992, no writ). Rather, subsection (E) is satisfied simply by proof that a parental course of conduct endangered a child=s physical or emotional well-being. Boyd, 727 S.W.2d at 534; In re R.D., 955 S.W.2d 364, 368 (Tex. App.BSan Antonio 1997, pet. denied); Bowling, 833 S.W.2d at 733.
On appeal, appellant argues that there is no evidence that appellant either abused the children herself or knew that any sexual abuse was taking place. She also argues that there is no proof that her acts or failure to act resulted in any actual harm or danger of harm to her children.
In reviewing the legal sufficiency of the evidence, we consider only the facts that support the finding of the trial court, viewing the evidence in a light that tends to support the finding, disregarding all evidence and inferences to the contrary and affirming the finding if there is at least a scintilla of evidence in support of such finding.[11] Bradford, 48 S.W.3d at 754. Reviewing the evidence in this case under that standard, we note that the evidence at trial which supported the findings of the trial court included the following:[12]
(1) Pornographic movies were available in the home;
(2) Minors, including both C.M.S. and S.R.L., were allowed to watch pornographic videos at appellant=s home with appellant. Appellant frequently invited another minor to watch pornographic movies and smoke marihuana with her in the home;
(3) C.M.S. was disturbed by her mother=s invitation to watch pornographic videos together;
(4) According to a psychologist who interviewed the children, the viewing of pornographic videos with their mother was harmful to the children=s emotional well-being, and a safe and healthy environment had not been provided for the children;
(5)There was regular drinking and marihuana smoking in the house;
(6) Appellant made alcohol and marijuana available to minors in the home;
(7) Appellant was aware that one of her boyfriends exposed himself to a minor in her home while propositioning the minor but allowed the boyfriend to remain in the home. The boyfriend sexually assaulted the minor later that same night in appellant=s bed. The boyfriend was in appellant=s home the next night and sexually assaulted the minor again. Appellant found the minor in bed with the boyfriend once;
(8) S.R.L. stated that he had heard his mother, her boyfriend and a minor female relative having sex in his mother=s room;
(9) C.M.S. stated that she was sexually assaulted by a non-relative adult several times, at least once in her home, and told her mother and her mother said not to do it again;
(10) C.M.S. stated that she was sexually assaulted twice by a male relative and her mother was in the room laughing during one incident;
(11) C.M.S. told her mother that she was being sexually assaulted by the male relative and her mother did not want to talk about it;
(12) One assault of C.M.S. occurred when she was specifically left in the male relative=s care while the male relative=s mother was out of the house. There was also testimony from a child relative that S.R.L. was also assaulted on that same occasion by other relatives, while in the care of the male relative;
(13) The male relative who gave a confession to sexually assaulting C.M.S., among other female relatives, stated in that confession that appellant told him that her father, who had sexually assaulted her, was sexually assaulting C.M.S. and another minor girl; and,
(14) Although appellant was sexually assaulted by her father, he visited her home and her children were around him in her home and in other relatives= homes where she left them or permitted them to visit. Appellant stated at trial that she believed her father had had Asex with these children.@ On one occasion when C.M.S. was visiting at a home which she was allowed to frequent, and where she was often left in the care of others, she saw appellant=s father sexually assaulting her aunt.
We find this to be more than a scintilla of evidence that appellant knowingly placed and allowed her children, C.M.S. and S.R.L., to remain in conditions or surroundings which endangered their physical or emotional well-beings and also that she engaged in conduct and knowingly placed the children with persons who engaged in conduct which endangered their physical and emotional well-being. We therefore find the evidence legally sufficient to support the trial court=s findings as to sections 161.001(1)(D) and 161.001(1)(E).
As for the factual sufficiency of the evidence, we must determine whether the trial court could have reasonably formed a firm conviction or belief that grounds existed for termination.[13] In re C.H., 45 Tex. Sup. Ct. J. at 1005. In doing so, we must consider all the evidence submitted, not just that supporting the trial court=s findings. Id. at 1008. We note that the evidence in the instant case was hotly contested: appellant denied endangering the children in any way or being aware of any sexual abuse; the male relative who confessed that he sexually assaulted C.M.S. recanted his confession on the stand; and the children=s testimony was often vague, occasionally confused, sometimes bizarre and, in some cases, contradictory. Appellant acknowledges that there is evidence supporting the trial court=s finding but argues that the evidence was contradicted or conflicting and does not rise to the level necessary to be held factually sufficient. However, it is not necessary that the evidence be unequivocal or undisputed in order to be clear and convincing. Doria v. Tex. Dep=t of Human Resources, 747 S.W.2d 953, 955 (Tex. App.BCorpus Christi 1988, no writ)(citing State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). Moreover, in reference to credibility determinations, such judgments are in the province of the fact finder and we must defer to the factfinder=s resolution of such issues.[14] In re M.E.C., 66 S.W.3d 449, 455 (Tex. App.BWaco 2001, no pet.); see also In re L.R.M., 763 S.W.2d 64, 68 (Tex. App.BFort Worth 1989, no writ)(noting that Athe jury decides@ what testimony is credible where there is conflicting testimony). In determining the factual sufficiency of the evidence, Awe may not interfere with the factfinder=s resolution of conflicts in the evidence or pass on the weight or credibility of the witnesses= testimony.@ In re B.R., 950 S.W.2d 113, 121 (Tex. App.B El Paso 1997, no writ)(citing Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951)).
In light of the stated standards, after reviewing all of the evidence in this case, and giving due deference to the factfinder=s determinations as to credibility and the resolutions of conflicts in the evidence, we find the evidence factually sufficient as to both grounds. As to subsection (D), we observe that Ainappropriate, debauching, unlawful or unnatural conduct of persons who live in the home of a child, or with whom a child is compelled to associate on a regular basis@ are Ainherently part of the >conditions and surroundings=@ of the child and that the provisions of subsection (D) were Amanifestly designed to protect children against just such an environment.@ In re B.R., 822 S.W.2d 103, 106 (Tex. App.BTyler 1991, writ denied).[15] We find that the trial court could have reasonably formed a firm conviction or belief in the instant case that grounds existed for termination under subsection (D).
In regard to subsection (E), much argument has been directed in this case as to whether and when appellant knew of the alleged sexual abuse of C.M.S. by an adult cousin and whether, after the point of knowledge, if any, appellant by some act, failure to act or omission, then endangered the children. As we have noted, we must defer to the factfinder as to the resolutions of credibility and conflicts in testimony. In re M.E.C., 66 S.W.3d at 455; In re B.R., 950 S.W.2d at 121; In re L.R.M., 763 S.W.2d at 68. However, even wholly discounting the alleged sexual abuse of C.M.S. and appellant=s contested actions, inactions, or omissions relative to it, we find that the evidence of appellant=s conduct as otherwise testified to at trial was, in itself, sufficient for the factfinder to form a firm belief or conviction that grounds existed for termination under subsection (E). Accordingly, we find the evidence factually sufficient to support the trial court=s findings as to both section 161.001(1)(D) and section 161.001(1)(E).
Conclusion
As we have found the evidence both factually and legally sufficient, we overrule both of appellant=s issues and affirm the judgment of the trial court terminating the parent-child relationship.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 31st day of October, 2002.
[1] Retired Justice Melchor Chavez assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).
[2] AClear and convincing evidence@ is defined as the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction about the truth of the allegations sought to be established. Tex. Fam. Code Ann. '101.007 (Vernon 2002). This standard is an intermediate one, higher than the preponderance of the evidence standard applied in civil cases but lower than the reasonable doubt standard used in criminal cases. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); Doria v. Tex. Dep=t of Human Resources, 747 S.W.2d 953, 955 (Tex. App.BCorpus Christi 1988, no writ).
[3] The Texas Department of Protective and Regulatory Services alleged in its petition for termination that termination of the parent-child relationship was in the children=s best interest and that appellant had committed one or more of the following acts or omissions under section 161.001(1) of the family code:
(D) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;
(E) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.
See Tex. Fam. Code Ann. ' 161.001(1)(D), (1)(E) (Vernon 2002).
The trial court found sufficient evidence to support both allegations.
[4] Appellant=s two issues read:
Appellant states, as the grounds for her appeal, that the evidence submitted to the trial court was legally insufficient to support a finding that Appellant had knowingly engaged in conduct or knowingly allowed others to engage in conduct which endangered the children.
Appellant further states that the evidence submitted was factually insufficient to support a finding that Appellant had knowingly engaged in conduct ore (sic) knowingly allowed others to engage in conduct which endangered the children.
While appellant=s issues do not specifically refer to section 161.001(1)(E) in the body of their recitation, they appear to be an attempt to track the language of section 161.001(1)(E). See Tex. Fam. Code Ann. '161.001(1)(E)(Vernon 2002)(Aengaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child@).
[5] Aside from not challenging this ground in a listed issue as required by the appellate rules, appellant provides no arguments, record cites, or authorities addressing this finding. See Tex. R. App. P. 38.1(e),(f),(h). Only two references to this finding occur in the entire brief B first, in the description of the procedural history of the case (noting that the trial court made such finding) and, secondly, in the prayer, in which appellant asks this Court to find the evidence factually and legally insufficient to support such finding. A contention which is neither listed as an issue, nor briefed, but only raised in a prayer is not properly before this Court for review. See Tex. R. App. P. 38.1(e),(f),(h); see also In re T.T., 39 S.W.3d 355, 362 n.5 (Tex. App.BHouston [1st Dist.] 2001, no pet.)(refusing to address an appellant=s contention that the evidence was insufficient to support the termination of his parental rights when such contention was not briefed but raised only in his prayer).
[6] However, in the interest of justice, because of the nature of the proceedings, we address both of appellant=s listed points challenging the trial court=s finding under section 161.001(1)(E) and also her unraised issue as to the trial court=s finding under section 161.001(1)(D). We do so in order to eliminate the possibility of remand for their consideration which would send into Aappellate orbit@ a case involving the lives and futures of children whose need for permanency is particularly acute. See Bourgeois v. Collier, 959 S.W.2d 241, 245 n.2 (Tex. App.BDallas 1997, no writ)(citing Eagle Props., Ltd. v. Scharbauer, 816 S.W.2d 559, 563 (Tex. App.BEl Paso 1991, writ denied)(Osborn, C.J., concurring))(explaining reason for addressing issues which normally would not have been addressed).
[7] Environment in this context, however, is not limited to a physical environment such as housing or living conditions. AConditions or surroundings@ for the purposes of subsection (D) includes also the environment produced by the conduct of parents or others. In re W.S., 899 S.W.2d 772, 776 (Tex. App.BFort Worth 1995, no writ)(interpreting predecessor statute with same language); see also D.O. v. Tex. Dep=t of Human Servs., 851 S.W.2d 351, 354 (Tex. App.BAustin 1993, no writ)(finding that evidence of a child=s residence in an unstable household, where violence frequently occurred and where ex-felons engaged in ongoing criminal activity resided, was sufficient to sustain termination based on finding that parent allowed child to remain in surroundings that endangered her physical or emotional well-being); In re B.R., 822 S.W.2d 103, 106 (Tex. App.BTyler 1991, writ denied)(holding that abusive or violent conduct by a parent or other resident of a child=s home can produce an environment which endangers a child=s physical or emotional well-being); Smith v. Sims, 801 S.W.2d 247, 251 (Tex. App.BHouston [14th Dist.] 1990, no writ)(determining that where father fled to home where his children were staying, after he had killed their mother, and held them and their grandparents as hostages at gunpoint for three days until they were rescued by the local SWAT team, father had put his children in an environment that had endangered their physical and emotional well-being).
[8] When reviewing a finding under this subsection, evidence regarding a parent=s conduct is generally Arelevant only to the issue of whether a parent Aknowingly@ placed or allowed the child to remain in certain Aconditions or surroundings@ that endangered the child=s physical or emotional well-being. In re P.S., 766 S.W.2d 833, 835 (Tex. App.BHouston [1st Dist.] 1989, no writ). However, the conduct of a person or persons, parents or otherwise, may certainly create an environment which is a danger to a child, as noted in footnote 6.
[9] The conduct of others may be relevant under section 161.001(1)(E) where it is alleged that the parent knowingly placed the child with persons that engaged in conduct that endangered the child, but only in the context of determining whether the parent endangered the child by knowingly placing the child with such persons. It is the parent=s action in knowingly placing the child with such persons which is the ultimate cause of the danger to the child and is the basis for the termination of the parental rights in such circumstances. See Tex. Fam. Code Ann. '161.001(1)(E)(Vernon 2002).
[10] Nor, if the conduct in question is directed at another, is it necessary that the child at issue be present or witness the conduct. Dir. of Dallas County Child Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.BDallas 1992, no writ).
[11] Appellant argues that the Supreme Court Adefined the standard to be applied in reviewing only issues of legal sufficiency@ in its recent decision of In re C.H. and sets out the same in her legal sufficiency argument. In re C.H., 45 Tex. Sup. Ct. J. 1000, 2002 Tex. LEXIS 113 (July 3, 2002) We decline to apply the standard set out In re C.H. to our legal sufficiency review as the supreme court in that case explicitly and exclusively dealt with the appellate standard appropriate to a review of the factual sufficiency of the evidence. Id. at 1000 (AWe are asked to decide the appropriate appellate standard to review the factual sufficiency of the evidence in parental termination cases . . . A).
[12] In a sufficiency review, we may consider any unobjected-to hearsay in making our determinations. In re W.C., 56 S.W.3d 863, 870 (Tex. App.BHouston [14th Dist.] 2001, no pet.)(citing Tex. R. Evid. 802). We may also consider circumstantial evidence. In re S.H.A., 728 S.W.2d 73, 86 (Tex. App.BDallas 1987, writ ref=d n.r.e.)(dealing with predecessor statute).
[13] Appellant suggests that we review the factual sufficiency of the evidence under the standard set out in Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485 (1984), asserting that the supreme court in In re C.H. did not set out a standard for factual sufficiency but referred instead to the Bose standard. Appellant then cites us to the Ahighly probable@ standard enunciated by the El Paso court of appeals in In re B.R., 950 S.W.2d 113, 119 (Tex. App.BEl Paso 1997, no writ). As previously discussed, In re C.H. specifically sets out the standard for factual sufficiency to be used in termination cases and we will apply that standard of review. See In re C.H., 45 Tex. Sup. Ct. J. at 1005. We note also that the supreme court specifically rejected the Ahighly probable@ formulation of In re B.R. in that same decision. Id. at 1006 (AWe also disapprove of the test . . . that a court of appeals must whether a reasonable trier of fact could conclude that the existence of a disputed fact is Ahighly probable@ See . . . In re B.R., 950 S.W.2d 113, 119 (Tex. App.B El Paso 1997, no writ) . . . Because some could argue that evidence that makes the existence of a fact Ahighly probable is not necessarily the same as evidence that produces a firm conviction in the existence of a fact, we reject the Ahighly probable@ formulation.@)(emphasis in original).
[14] We note that the supreme court has not passed on the question of whether termination proceedings, because of the nature of the rights involved, require a higher level of scrutiny, namely, a de novo review with limited deference to the factfinder. See In re C.H., 45 Tex. Sup. Ct. J. at 1008. (Hecht, J., concurring)(noting that the court did not address this issue, even though raised by respondent, because it was unnecessary to the resolution of the appeal, but opining that it might be necessary for the court to address it in the future). We therefore apply the traditional deference standard applicable to a factual sufficiency review of civil proceedings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998)(AThe court of appeals is not a fact finder. Accordingly the court of appeals may not pass upon the witnesses= credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result.@)
[15] See also In re Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.BTexarkana 2000, no pet.)(finding that home where relatives who had been accused of multiple sexual assaults lived, where appellant=s father, who had sexually assaulted appellant lived, and which home was also nearby other relatives= homes who were likewise accused of sexual assaults and whose homes the children were allowed to frequent without supervision, was a dangerous place, sustaining finding under subsection (D)).