TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00678-CV
E. H., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
NO. 12-15167, HONORABLE BENTON ESKEW, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found by clear and convincing evidence that the parent-child relationship
between E.H. and his five children should be terminated. On appeal, E.H. challenges the legal and
factual sufficiency of the evidence supporting the jury’s finding that termination is in the children’s
best interests. We will affirm the judgment.
BACKGROUND
This appeal concerns E.H.’s parental rights to five children—girls born in
December 1999 and August 2002, and boys born in March 2004, October 2005, and June 2007. The
children were removed from the parents in April 2012 after one of the boys told school officials that
their youngest brother had been eaten by wolves. The report proved false, but apparently triggered
a chain of events that led the children’s mother to disappear with the children for several days.
During that time, they missed school and their personal hygiene was substandard. The Department’s
investigation revealed reports of domestic violence and drug abuse by the parents. The children were
placed with a relative so that the parents could focus on resolving their problems, which included
financial and emotional stresses from losing their home and belongings in a forest fire. The parents
complied with some aspects of the service plan, but repeatedly tested positive for drug use, which
curtailed their visitation with the children.
There was uncontroverted testimony that the children were anxious, emotional,
and verbally and physically abusive when they were taken into foster care. Their first placement
requested that they be reassigned because they were hurting her physically. The boys tended to refer
to women and girls with derogatory language. After three placements in five months, the children
settled in with their fourth foster placement for the year prior to the trial. Four of the children
reportedly thrived in this home, but the younger girl was removed to a residential treatment center
for her emotional issues. The undisputed reports are that the children now are less anxious, less
verbally and physically abusive, and doing much better in school.
The trial court extended the year-long period for compliance with the service plan by
the maximum six months. Not long before trial, the children’s mother disappeared.1 E.H. found an
intensive outpatient drug rehabilitation program that seemed to be helping him in the final weeks
before trial, but he had relapsed three times after beginning treatment there including twenty-four
days before his testimony at trial.
1
The relative who originally took the children indicated that several weeks before trial, E.H.
sent a text stating that the mother was missing. The licensed counselor who taught both parents
protective parenting and then provided some individual counseling testified that the mother had
entered a residential treatment program six weeks before trial, but then ten days before trial dropped
out of or had been asked to leave the program. She did not appear in person at trial although her
counsel did.
2
A jury found that both parents had committed several of the actions justifying
termination2 and that termination was in the children’s best interests, and the trial court terminated
the parental rights of both parents to these children. See Tex. Fam. Code § 161.001. The children’s
mother does not appeal the termination of her rights.
STANDARD OF REVIEW
The best interest of the child is assessed using a non-exhaustive list of factors. See
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). These factors include (1) the child’s wishes, (2) his
emotional and physical needs now and in the future, (3) emotional or physical danger to the child
now and in the future, (4) the parenting abilities of the parties seeking custody, (5) programs
available to help those parties, (6) plans for the child by the parties seeking custody, (7) the stability
of the proposed placement, (8) the acts or omissions of the parent which indicate that the existing
parent-child relationship is not proper, and (9) any excuses for the acts or omissions of the parent.
See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). There is a strong presumption that a
parent should be appointed managing conservator unless that appointment is not in the child’s best
interest and would significantly impair the child’s physical health or emotional development. See
2
These actions include voluntarily leaving the child in another’s possession without
providing adequate support for at least six months, knowingly placing or allowing the child to
remain in conditions or surroundings or with persons who endangered the child’s emotional or
physical well-being, failing to support the child in accordance with their ability for a year ending
within six months of the date of the filing of the petition, being the major cause of the child’s failure
to be enrolled in school as required, constructively abandoning the child in the custody of the
Department despite attempts at reunification, not visiting or maintaining significant contact with the
child, demonstrating an inability to provide the child with a safe environment, not complying with
the service plan for reunification, using a controlled substance in a manner that endangered the health
or safety of the child, and failing to complete a court-ordered substance-abuse treatment program.
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Lewelling v. Lewelling, 796 S.W.2d 164, 166-67 (Tex. 1990); Harris v. Texas Dep’t of Family &
Protective Servs., 228 S.W.3d 819, 821 (Tex. App.—Austin 2007, no pet.); see also Tex. Fam. Code
§ 153.131(a).
The Department need not prove all nine of these factors favor termination. In re C.H.,
89 S.W.3d 17, 27 (Tex. 2002). While no one factor is controlling, the analysis of a single factor
may be adequate in a particular situation to support a finding that termination is in the
children’s best interests. Spurck v. Texas Dep’t of Family & Protective Servs., 396 S.W.3d 205, 222
(Tex. App.—Austin 2013, no pet.).
We review the legal sufficiency of the evidence in a termination case by considering
all of the evidence in the light most favorable to the factfinder’s determination and will uphold a
finding if a reasonable factfinder could have formed a firm conviction that its finding was true.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the jury resolved disputed facts in
favor of its finding if it could reasonably do so. Id. An appellate court should disregard evidence
a reasonable factfinder could have disbelieved or found incredible. Id.
When reviewing the factual sufficiency of the evidence in a parental termination case,
we view all of the evidence in a neutral light and determine whether a reasonable factfinder
could form a firm belief or conviction that a given finding was true. In re C.H., 89 S.W.3d at 18-19.
We assume that the jury resolved disputed facts in favor of its finding if a reasonable jury could do
so, and we disregard evidence that a reasonable jury could have disbelieved or found incredible.
J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable factfinder could not
reasonably have formed a firm belief or conviction supporting its finding. Id.
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DISCUSSION
By his sole issue on appeal, E.H. contends that the evidence was legally and factually
insufficient to support a finding that termination of his parental rights was in the children’s best
interests. E.H. contends that the Department failed to produce sufficient evidence to support findings
on the Holley factors set out above. See 544 S.W.2d at 371-72.
The children did not testify, so all evidence of their wishes was second-hand. E.H.
cites the children’s therapist’s testimony that the children wanted to go home and be with their
parents. He also points to undisputed testimony that he and the children love each other. E.H.’s
argument fails to mention other parts of the therapist’s testimony, however, in which she reported
that the children said they wanted to go home only because there are “awesome things” like a pony,
guns, and a dog waiting for them, but if the things are not there they prefer to stay in their current
foster placement. The therapist testified that, when the parents had failed to deliver on promises of
items to be provided in visits, the children reverted to anxiety, anger, and depression. The therapist
said that the children want to stay where they are until their parents “do whatever they have to do.”
E.H. concedes that he could not at the time of trial satisfy the children’s physical
and emotional needs because the home he was building for them was not yet complete and because
he was working and undergoing an intensive outpatient drug rehabilitation program. E.H. testified
that, before trial, he was unaware that the volatility of his relationship with the children’s
mother, including verbal hostility and occasional physical confrontations, had the negative effects
on the children that their therapists recounted. He testified that he was unaware that his children’s
yelling, cursing, and fighting were not standard for children their age. E.H. admitted to drug
use spanning decades—primarily daily marijuana use, but also some methamphetamine use. Only
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after his children had been removed from his care for fifteen months—three months after the original
deadline for completion of his service plan—did he begin participating in drug rehabilitation. In
the remaining three months of the extended compliance period, he relapsed three times including
24 days before trial. Despite the fact that positive drug tests prevented him from visiting his
children, he repeatedly tested positive for drug use during the pendency of the case and testified that
he probably would have on the date of trial, given the recency of his last relapse. He recounted
twenty-eight arrests in his lifetime, including nine for marijuana possession, and had been
incarcerated. Persons involved in and observing E.H. during his participation in the rehabilitation
program testified that they had seen a remarkable change in the weeks prior to the trial and believed
that he could have a solid foundation for his future within six months to a year.
E.H.’s stated plan is to move the children into a house on his father’s property.
Testimony from therapists revealed that both girls alleged that they were sexually abused by E.H.’s
father. E.H. did not think his father would sexually abuse a child, but said he would believe a
daughter who claimed it occurred. E.H. testified that he was aware that his father communicated
primarily by yelling angrily, but did not realize that his children feared his father. The therapist
testified that the children said that they do not want to go back to their parents if that means being
near their paternal grandfather. The children told their therapist that their grandfather spanked them
with fan blades and belts. E.H. nevertheless persisted in his intention to house the children on his
father’s property.
The CASA volunteer testified that, while her original goal was to reunite the children
with their parents, she had determined that termination was appropriate. She had been assigned to
the case for almost nine months. She testified that CASA volunteers visit with the children monthly,
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and she described her conversations with and observations of the children. She had read documents
filed in the case including E.H.’s psychological evaluation, had read the children’s therapist’s notes,
and had discussed the children with the therapist. She testified that the children were thriving in
their foster placement at the time of trial. She described their current placement as stable despite
their repeated moves early in the case. The CASA volunteer testified that the children would need
to continue in therapy and that she did not see how E.H. could provide that. She conceded that E.H.
attended all of the status hearings on the children even when he was under threat of arrest for his
continued drug use.
E.H. contends that the emotional and physical dangers to the children were lessened
by his realization during his rehabilitation treatment that he was using substances to self-medicate
for his depression. He also said that the home he was constructing for the children on his father’s
land was nearly complete. Despite his new-found sobriety, however, E.H. had a years-long history
of drug abuse and verbal abuse, and he had been unaware of or indifferent to its effects on the
children including its legal ramifications during this case.
As for the parties’ plans for the children, E.H. intended to keep them in foster care
while he pursued his rehabilitation program, to finish the house he was building, and then to move
them next door to his allegedly abusive father who the children feared and did not want to live near.
He did not name any family members or friends as possible alternate placements. The Department
planned to keep the children in their current placement until they were adopted as a group, but
the Department had not identified an adoptive family. There was some testimony that finding an
adoptive home for a group of five children might be more challenging than for a smaller group.
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The record contained evidence that E.H. exposed the children to his daily drug use,
as well as frequent verbal abuse and occasional physical abuse that the children experienced
both first-hand and as witnesses. Their environment had affected the children in ways that they were
overcoming while in foster care, but they would need continued therapy with one requiring
residential treatment in a locked facility. E.H. produced testimony that he had realized the error of
his ways and was working to address those problems. He intended to continue with his rehabilitation
and to provide a safe home for his children, but was not able to do so immediately. He agreed that
all of his hopes and plans were on the brink of working, but were also “on the brink of a deep, dark
hole” if he relapsed again. Assessing this record using the applicable standards, we conclude that
the record contains legally and factually sufficient evidence to support the jury’s finding by clear and
convincing evidence that termination of E.H.’s parental rights was in the children’s best interest.
CONCLUSION
We affirm the order terminating E.H.’s parental rights to his five children.
Jeff Rose, Justice
Before Justices Puryear, Rose, and Goodwin
Affirmed
Filed: January 31, 2014
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