COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00076-CV
IN THE INTEREST OF D.A.,
A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-97474J-12
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an ultra-accelerated appeal2 in which Appellant Father appeals the
termination of his parental rights to his son, D.A. In three issues, Father argues
that the evidence is legally and factually insufficient to support the endangering-
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
environment, endangering-conduct, and best-interest findings under Texas
Family Code section 161.001(1)(D) and (E) and section 161.001(2). See Tex.
Fam. Code Ann. §§ 161.001(1)(D), (E), (2) (West 2014). We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
Father is the presumed father of D.A. D.A. appeared at school on
November 1, 2012, with noticeable bruises on his face, and it was discovered
later that day that he had bruises covering eighty percent of his back. Father
admitted inflicting the bruises on D.A.’s face and back with a belt during a five-
minute “spanking” session the previous night. Father testified that this was a
one-time occurrence.
The jury heard testimony from eighteen witnesses, including Father and
Mother.3 Because the 1,800-page record contains conflicting testimony on
previous abuse of D.A. by Father and domestic violence in the home and
because Father challenges the best-interest finding, we set forth a detailed
summary of the record below.
3
The jury found by clear and convincing evidence that Mother had
committed the endangering-environment and endangering-conduct grounds
found in Texas Family Code section 161.001(1)(D) and (E) but that termination of
the parent-child relationship between Mother and D.A. would not be in D.A.’s
best interest. Based on the jury’s findings, the trial court did not terminate the
parent-child relationship between Mother and D.A. The trial court did, however,
appoint the Texas Department of Family and Protective Services (TDFPS or the
Department) as managing conservator of D.A. Because only Father is involved
in this appeal, we set forth facts related to Mother only when they are necessary
to the disposition of Father’s appeal.
2
B. Teacher and School Nurse See Marks on D.A.
D.A.’s third-grade teacher sent him to the school clinic on November 1,
2012, because she saw a mark on his face near one of the flaps on D.A.’s hat.4
When D.A. arrived in the school clinic, the school’s nurse, Evelyn Dubois, could
see part of a mark, but most of the mark was covered by the hat. After
convincing D.A. to remove the hat, Dubois was concerned about the mark on
D.A.’s face. D.A. put the hat back on, and Dubois took D.A. to the counselor’s
office.
Once in the counselor’s office, it took more coaxing for D.A. to remove the
hat a second time. Dubois and the school counselor asked D.A. how he had
received the mark. D.A. said that he had been hit with a belt because he did not
listen to Father. Later, when D.A. removed his shirt, Dubois saw that D.A. also
had a mark on his shoulder and “more marks against the thoracic part down his
side . . . and back.”
Dubois testified that she had concerns for D.A.’s safety because his
injuries, which she described as deep contusions, revealed that he had not been
spanked but rather that he had been beaten. Dubois testified that she had never
seen a child at that school with injuries as severe as D.A.’s. Dubois contacted
the police and CPS because she did not believe it was safe for D.A. to return to
his home after school.
4
D.A. was wearing a monkey stocking cap for the school’s hat day.
3
C. Police Interview D.A. and Order Him Transported to
Cook Children’s Hospital
Officer Anthony Tseung with the Arlington Police Department testified that
he responded to the call from the elementary school saying that a father had
abused a child. When D.A. removed his cap, Officer Tseung saw that D.A. had
an injury to his face that looked like the imprint of a belt buckle. Officer Tseung
asked D.A. how he had been injured, and D.A. said that he had gotten in trouble
with Father for answering Father’s questions too slowly; D.A. said that Father
had “whooped” him with a belt. D.A. did not remember how many times Father
hit him with the belt; he could remember only that it was more than one time.
Officer Tseung requested that D.A. remove his shirt and approximated that
eighty percent of D.A.’s back was covered with injuries. Officer Tseung
described D.A.’s injuries as severe. The Arlington Police Department decided
that they wanted D.A. to be transported to Cook Children’s Hospital to be
checked for internal injuries.
Officer Tseung went to Cook Children’s Hospital with D.A. and stayed
there until his shift ended at 9:00 or 9:30 p.m. Officer Tseung did not speak
directly to Father but heard CPS interview Father. During that interview, Father
said that D.A.’s injuries were from Father’s disciplining D.A. Officer Tseung said
that he interpreted Father’s response as admitting that he had caused the injuries
to D.A.
4
Officer Tseung testified that the injuries were not the result of a spanking
but of a beating. Officer Tseung said that D.A.’s case was one of the most
severe cases of child abuse that Officer Tseung had seen.
Detective Victor Hadash, also with the Arlington Police Department,
testified that he was on the scene on November 1, 2012, and interviewed D.A.’s
teacher, the counselor at the elementary school, and the CPS investigator.
Detective Hadash concluded through his investigation that D.A. had been
beaten. Detective Hadash prepared an arrest warrant for Father for the offense
of injury to a child, which is a third-degree felony with a punishment range of two
to ten years in prison.5
D. D.A.’s Medical Examination at Cook Children’s Hospital
Dr. Sophia Grant, who works on the CARE Team that sees children with
concerns of abuse and neglect at Cook Children’s,6 testified that when D.A.
presented to the hospital on November 1, 2012, he had multiple significant
injuries and that it appeared that he “was the victim of a beating, which caused
extensive bruising” and was painful to D.A. Dr. Grant explained that D.A. had a
bruise on his left cheek that extended above the left eye and affected the ear, as
well. Dr. Grant testified that whenever a belt comes into contact with an eye,
5
According to Detective Hadash, Father’s injury-to-a-child case was still
pending at the time of the termination trial.
6
Dr. Grant stated that she had reviewed the records from Cook Children’s
pertaining to D.A. and that she was testifying because the doctor who had
treated D.A. was out of the country at the time of the termination trial.
5
there is concern for damage to the eye and even blindness and that a strike to
the side of the head can cause the ear drum to rupture and can cause deafness.
Dr. Grant testified that the hospital records reflected that D.A. also had
purple-red bruising on his mid and upper back that extended to the right rib cage
and chest and that D.A. had two smaller discolored bruises to the right and left
lower back that appeared to be in a different stage of healing than the other
bruises on his back. Dr. Grant stated that the different stages of the bruising on
D.A.’s lower back indicated prior episodes of abuse. Dr. Grant opined that it
would be highly unusual for D.A.’s older bruises to have been caused by playing
on the playground because they were located on the fleshy part of his back. Dr.
Grant testified that children tend to bruise on the frontal surfaces of the body
when they fall forward.
Dr. Grant testified that the hospital records indicated that D.A.’s injuries
were caused by Father’s hitting D.A. with a belt the night before he went to the
hospital because D.A. did not answer a question quickly enough. The hospital
records also indicated that D.A. had said that this had happened before.
The hospital records revealed that Mother and Father reported to CPS and
to the Arlington police officers that D.A. had a condition that caused him to bruise
easily. Dr. Grant testified that even if D.A. had such a condition, it would not
negate the fact that he was bruised by being hit with a belt. Dr. Grant testified
that the hospital ran blood work to determine if what the parents had said was
true, and the lab work came back normal. Dr. Grant testified that if D.A. really did
6
have a condition that caused him to bruise easily, he would have had bruises on
areas that are commonly bruised in childhood play, such as his elbows, chin,
knees, or shins; D.A. did not have bruises on those areas. Dr. Grant testified that
she was satisfied that sufficient tests had been performed to negate a bruising
condition as a possible explanation for D.A.’s injuries.
Dr. Grant testified that D.A.’s bruises and abrasions indicate a high level of
violence.7 Dr. Grant testified that there was extensive bruising on D.A.; that the
bruising on D.A. was a serious injury constituting abuse; and that the bruising
was the result of a beating, not a spanking. Dr. Grant testified that there was
nothing in the medical records to corroborate any claim that D.A.’s injuries were
caused by anything other than child abuse.
E. CPS’s Investigation and Removal of D.A.
Gerri Tarver Madden, a former investigator for CPS, testified that she had
responded at 2:30 p.m. on November 1, 2012, to the referral from the elementary
school regarding allegations of physical abuse. When Madden first saw D.A.,
she noted that he had bruising on his face.8 Madden met with D.A. alone and
7
Dr. Grant testified that “when you take an object and you strike another
human being with that object and it causes bruising, that in and of itself is a high
level of violence.” She explained that her opinion was based on her credentials
as a child-abuse physician, her expertise in abusive injuries, and her familiarity
with the law on child abuse.
8
The record includes a service plan giving an update as of December 6,
2012. The notes under that date appear to give background information relating
to the removal, but the timing of the following findings is not provided: D.A.
appeared very thin and said he was only allowed to eat Ramen noodles in the
7
noted that he was developmentally on target, was very articulate, was very
intelligent, and was able to understand and answer her questions.9 D.A. was
able to differentiate between the truth and a lie, and he promised to tell the truth.
Madden asked D.A. what happened when he got in trouble at home, and
D.A. told Madden that on October 31, 2012, Father had hit him with a belt in the
face, which had caused bruises, and that Father had spanked D.A. on his back
with a belt, which had caused the bruises on his back. D.A. said that on the night
in question, Father came into the living from Father’s bedroom and asked D.A. if
he had eaten any pizza. D.A. told him that he had. Father asked D.A., “Why are
you looking at me that way?” D.A. told Madden that he took too long to respond
to Father’s question, and Father told D.A. to go to Father’s bedroom. D.A. said
that Father retrieved a belt and spanked D.A., who was wearing a Wolverine
costume for Halloween. D.A. said that Mother was in the master bathroom,
which was located off of Father’s bedroom, when D.A. was spanked. After the
“spanking,” Father made D.A. stand in the corner “for what seemed like a long
time.” Later, the family played inside because it was too late to go trick-or-
treating. D.A. said that his face and his back had hurt that night. When asked if
home; he was dirty, his clothes were dirty, and he had not had a bath; his finger
nails and toe nails were very long; and he was wearing dirty underwear and
socks.
9
Madden recorded her interview with D.A. at the elementary school, but
she testified at trial that the DVD could not be found.
8
he was afraid of anyone, D.A. said that he is afraid of Father when he gets
spanked.
Madden asked D.A. if he had left the home at any time on Halloween night,
and D.A. said that he had not; he said that he was not allowed to go outside at
any time without his parents or without their permission. D.A. said that Father
knew that he had not left the house and that Father knew that D.A. was in the
living room waiting to go trick-or-treating.
D.A. said that on November 1, Mother overslept, so he got himself ready
for school and waited for her to wake up. When Mother woke up, she told D.A.
that he did not have to go to school that day. D.A. said that he wanted to go to
school because it was crazy hat day, and he wanted to wear his hat to school.
D.A. said that Mother told him that if anyone asked about his bruises, he should
say that he had fallen. D.A. said that he did not eat breakfast and that he was
too late to get breakfast at school. D.A. said that he did not see Father that
morning.
D.A. told Madden that when his parents argue, sometimes Father hits
Mother. D.A. had seen Father hit Mother, and he had heard Father hit Mother
when D.A. was in his bedroom.
When Mother came to the school, she talked to Madden in the presence of
an Arlington police officer. Madden asked Mother whether she knew if D.A. had
been spanked, and Mother said that she knew that Father had spanked D.A. the
previous night but that she did not know why D.A. had been spanked. Mother
9
said that she was in the master bathroom when D.A. was spanked and that she
was very distraught because she had recently lost her great-grandmother.
Mother admitted that she had told D.A. to tell people that he had fallen. Madden
told Mother that she and Father needed to meet Madden at the hospital to
determine a safe plan for D.A., and Mother said that she was going home first to
change clothes and then would meet Madden at the hospital.
Madden followed the ambulance to the hospital around 3:45 p.m. At 5:15
p.m., Father called Madden and said that he had to close up shop and take care
of business; Madden explained that it was an emergency and that Mother and
Father needed to come to the hospital as soon as possible. At 7:15 p.m., Father
called and said that he was in the hospital’s parking lot, trying to find a parking
spot.
When Father came inside the hospital,10 Madden interviewed him with a
police officer present. Father said that he and Mother had lived in Nevada and
had moved back to Texas approximately a year and a half to two years before
November 1, 2012. Father admitted that he had a criminal history in Nevada.
Father said that while he and Mother lived in Nevada, Paternal Grandmother took
care of D.A. Father said that he did not want D.A. influenced by Paternal
Grandmother because when she had cared for D.A. while Father and Mother
lived in Nevada, Paternal Grandmother had taken D.A. “behind their backs” to be
10
Mother did not come to the hospital.
10
diagnosed as autistic. Father said that he did not believe that D.A. was autistic
and did not want him labeled as autistic. Father said that he and Mother had
worked hard with D.A. to be normal and to teach him how to act.
Father said that D.A. is a very good child; Father had spanked D.A. with a
belt11 probably five times in his lifetime. Father admitted that he had spanked
D.A. for five minutes with a belt on Halloween and that he had left bruises on
D.A.’s back and face. Father said that the bruise on D.A.’s face was an accident
that had occurred when D.A. had “raised up” during the “spanking.”
Father said that on Halloween night, he was in his bedroom getting ready
to take D.A. trick-or-treating. Father said that D.A. was in the living room wearing
his Wolverine costume. Father said that when he came out of his bedroom, D.A.
had left the house. Father went outside to look for D.A., and when Father
returned, he found D.A. in the living room watching a movie.12 Father told D.A. to
go to Father’s bedroom and lie face down on the bed. Father retrieved his belt
and spanked D.A. Father said that the next morning, Mother overslept, and he
ate breakfast with D.A., who seemed to be fine.
Madden concluded that D.A. could not go home with Father and testified
that there was no option other than foster care at that point.
11
Father said that he had been told not to spank a child with his hand.
12
Father indicated to Madden that it was possible that D.A. had not left the
house and that Father may have disciplined D.A. for no reason.
11
Madden interviewed Mother on November 7, 2012, at the parent-child visit.
Father did not want Mother to speak to CPS alone; he wanted to be present for
her interview. Madden asked Mother about being the victim of domestic
violence, and Mother denied that there had been any physical abuse.
Mother said that Father had spanked D.A. in the past. Mother said that on
the evening of October 31, she had planned to stay home; Father was going to
take D.A. trick-or-treating, but D.A. was excited and ran off. Mother said that it
was dark and dangerous outside, so Father went to find D.A.; Mother did not go
look for D.A. Mother said that when Father returned home, D.A. was in the living
room watching a movie. Father questioned D.A., and D.A. did not answer
Father’s questions. Mother said that Father told D.A. to go lie on Father’s bed
and spanked him with a belt. Mother said that she was in the master bathroom
distraught because she had recently lost her great-grandmother. Mother said
that she had heard Father spanking D.A.; that Father had stopped and had
asked D.A. questions; and that when D.A. had lied, Father had continued to
spank D.A. When Mother came out of the bathroom, she heard Father tell D.A.
that he was not allowed to lie to his parents because they were there to protect
him. Mother felt that the bruise to D.A.’s face was an accident.
Mother said that her alarm did not go off on November 1 and that her plan
was to keep D.A. home from school because they were late. Mother admitted
that she had told D.A. to lie and say that he had fallen down if anyone asked
about the bruises on his face. Mother said that D.A. did not eat breakfast that
12
morning and that she did not remember Father seeing or talking to D.A. before
Mother took D.A. to school.
Madden testified that D.A.’s injuries could be traumatizing to him. She said
that it was concerning that Father had said that he had spanked D.A. for five
minutes because that “is a long time to be spanked.” Madden testified that D.A.’s
injuries indicate that “this is more than a spanking and that it is a beating.”
Madden disposed of the case as reason to believe for physical abuse.
F. D.A.’s Forensic Interview
Joy Hallum, a child forensic interviewer and investigator for TDFPS,
testified that she had conducted a forensic interview of D.A. on November 16,
2012, at the Alliance for Children in Arlington. During the interview, Hallum
questioned D.A. about his injuries and his home life. A video of the interview was
played for the jury.
During the video, D.A. provided his birthdate and stated that he was nine
years old. He explained that when he was watching a movie in the living room of
the house on Halloween, Father came out of his room; Father was about to get a
piece of a pizza, and he asked if D.A. was hungry. D.A. said no and explained
that he had already eaten a piece of pizza. Father asked D.A. another question,
and D.A. said that he did not know what Father was asking and that he took too
long to answer the question. D.A. said that Father had an angry face when D.A.
did not answer fast enough. D.A. said that Father went into his room and got his
belt from his closet. D.A. explained that he was by Father’s bed when Father
13
retrieved the belt, that Father told D.A. to lie down on Father’s bed, and that D.A.
had his Wolverine costume on. D.A. said that Father held the belt by the buckle.
Father did not say anything when he gave the spanking but hit D.A.’s back and
then his face. D.A. said that it hurt when he got the spanking. D.A. told Hallum
that Mother was in Father’s bathroom and did not know he was getting a
spanking. D.A. said that afterwards, Father made him stand in the corner. D.A.
said that sometimes in the past, he had been hit with a clothes hanger, that he
did not know who had hit him, and that it had hurt when he was hit with a hanger.
Hallum testified that D.A. had answered many of her broad questions with
“I don’t know” but that he had provided more details in a narrative form when
Hallum had asked direct questions. Hallum said that such responses indicated
that sometimes he was not ready to talk about a particular issue. During the
interview, D.A. got out of his chair to describe how he was positioned on the bed
during the spanking, which gave Hallum a lot of information and confirmed what
he was telling her. Hallum did not see anything during the interview that
indicated that D.A. was not telling the truth.
G. CPS’s Removal of D.A. from Foster Care and Placement with Paternal
Grandmother
After CPS removed D.A. from his parents on November 1, 2012, D.A.
spent almost two months in a foster home before being moved to Paternal
Grandmother’s home.
14
H. Paternal Grandmother’s Testimony
Paternal Grandmother testified that D.A. likes to swim and to read, that he
loves sharks and wild mustangs, that he is very outgoing but has a problem with
social skills, and that he is brilliant. Paternal Grandmother testified that D.A.
reads on a tenth-grade level.
Paternal Grandmother testified that D.A. had gone back and forth between
her house and his parents’ house for five and a half years, that she was the
primary babysitter, and that D.A. had lived with her for long periods of time.
Paternal Grandmother kept D.A. all during kindergarten, and his parents came to
pick him up in July. D.A. lived with Paternal Grandmother for two years while
Mother and Father lived in Las Vegas; they did not visit him during that time but
did talk to him on the phone.
Paternal Grandmother testified that Mother and Father were not around
when D.A. was diagnosed with autism and that she wanted them to have
visitation first before D.A. went to live with them when they came for him in July
so that they could understand him. Paternal Grandmother said that she believed
that Father and Mother did not take the diagnosis seriously in the beginning.
Paternal Grandmother testified that she had concerns prior to D.A.’s
removal on November 1, 2012. She saw D.A. in July 2012 and noticed that he
had a bruise by his ear and that he was “really skinny.”13 Paternal Grandmother
13
Paternal Grandmother believed that D.A. lost weight during the times he
lived with Mother and Father.
15
was not on speaking terms with Father at that time and had fears because she
was being shut out of D.A.’s life by Mother and Father. Later, when D.A. was
living with her, Paternal Grandmother noted that when she was hanging up
clothes, D.A. “wigged out” and acted scared when he saw clothes hangers.
After Paternal Grandmother saw the pictures of D.A.’s injuries at the
beginning of the case, she said that she was scared that Mother and Father
would kill D.A. From the first day that D.A. came to live with Paternal
Grandmother in December 2012, she alerted the Wise County Sheriff’s
Department and the school that they needed to be on high alert because she
was scared that Mother and Father were going to come and try to do something.
Paternal Grandmother alerted the school, the sheriff’s department, and the
school bus drivers again when she learned that the Department was moving
forward with terminating Mother’s and Father’s parental rights.
Paternal Grandmother testified that she did not know that it was a violation
of the trial court’s orders to allow D.A. to talk to Father in September 2013 on
D.A.’s birthday. Paternal Grandmother admitted that she had also allowed D.A.
to have contact with his parents on October 26, 2013; Paternal Grandmother said
that on that date, D.A. needed a cheering squad at his soccer game for his self-
esteem, and so she believed that she was doing what was best for D.A. by
inviting Maternal Grandmother, Mother, and Father. After D.A.’s soccer game,
16
they all went to the fall festival.14 Paternal Grandmother testified that after the
interaction with his parents at the fall festival, D.A. did not have any anxiety.
Paternal Grandmother testified that she did not know that unsupervised
interactions between D.A. and his parents would cause D.A. to be removed from
her care. Paternal Grandmother admitted that she had lied to CPS by signing
the document saying that she would allow D.A. and his parents to visit only as
approved by TDFPS and the trial court and that she would cooperate in making
approved visits possible.
I. D.A.’s Psychological Evaluation and Sessions with Psychologist
Dr. Brandon Bates, a psychologist, testified that D.A.’s Paternal
Grandmother had approached him in 2013 to provide professional services to
D.A. while D.A. was living with her. Dr. Bates conducted a psychological
evaluation of D.A. and saw him twenty-six times between January 21, 2013 and
November 6, 2013.
Dr. Bates testified that D.A. had demonstrated some awkwardness in how
he interacted with others and said that D.A. is an intelligent child but has difficulty
maintaining conversation and initiating conversation with others. Dr. Bates
testified that he could engage D.A. in superficial dialogue, but D.A. had a
tendency to “lock up and not communicate” when the conversation was
uncomfortable. Dr. Bates diagnosed D.A. with Asperger’s Disorder and attention
14
Mother, Father, and D.A. had their picture taken in D.A.’s room at
Paternal Grandmother’s apartment after the fall festival.
17
deficit hyperactivity disorder (ADHD). Dr. Bates explained that the dual diagnosis
is significant in D.A.’s case because a big part of what he struggles with is
communicating, especially if he is uncomfortable, and the difficulty in
communicating is magnified by his difficulty in staying on task.
Dr. Bates testified that children with Asperger’s are typically “pretty literal
and pretty black and white. And so their fears are usually pretty founded.” Dr.
Bates testified that D.A. had a lot of anxiety regarding the visits with Mother and
Father, so one of the primary goals of the sessions was to teach him some skills
to deal with that anxiety. D.A. told Dr. Bates that he was anxious about the visits
because he was scared that Father was going to get mad at him. Specifically,
D.A. was afraid that Father would hit him if he took too long to answer a question
from Father because in the past, Father had gotten really mad at D.A. when he
was not able to verbalize responses;15 D.A. had a tendency to sit there and look
at a person when he could not verbalize a response. Dr. Bates worked with D.A.
on different ways that he could feel safe, such as controlling his breathing and his
thoughts when he started to get overanxious.
Dr. Bates noted that the fears that D.A. had expressed on March 4, 2013,
regarding Father’s hitting him, did not go away by D.A.’s May 6, 2013 office visit
with Dr. Bates and continued to be a very regular theme, as shown by the
15
Dr. Bates could not determine whether D.A. was spanked on every
occasion when he took too long to answer a question from Father; Dr. Bates said
that D.A. could have been spanked only on October 31, 2012.
18
therapy notes. In October 2013, D.A. made progress related to his anxieties and
his fears about contact with his parents. But at the last session on November 6,
2013, Dr. Bates learned that D.A. had recently seen his parents in an
unsupervised setting and that his behavior had deteriorated; D.A. began having a
lot of problems at school and had been in trouble twice at school that week.
Dr. Bates agreed that the injuries D.A. had received constitute child abuse
because they were well beyond corporal punishment. Dr. Bates said that if D.A.
was asked to testify regarding the abuse he had suffered, “it would really set him
back[,]” and “he would probably completely free[ze] up and . . . regress.”
Dr. Bates testified that D.A. needs a home in which his care providers are
willing to learn about Asperger’s, how to work with a child who has been
physically abused, and different disciplining methods. Dr. Bates stated that
discipline for D.A. will have to be “a little bit out of the norm, thinking outside the
box” because corporal punishment is not going to be effective and would
probably “go the opposite way.” Dr. Bates said that D.A. needs a home in which
his care providers understand that when D.A. does not respond to a question, he
is locked up and possibly nervous, but he is not being defiant. Dr. Bates
summarized that D.A. needs a home with a lot of understanding and that is calm,
that provides structure, and that lets D.A. know what is to be expected and what
is going to happen. Dr. Bates testified that he would have a lot of fear about a
household that rejects the idea that D.A. has Asperger’s and that he would be
19
concerned about a home in which the care providers think that there is nothing
wrong with the discipline that D.A. received that caused his injuries.
When asked at trial whether D.A. could go home to Mother and Father, Dr.
Bates, who had not seen D.A. in two and a half months, testified that it would
depend on how D.A. was currently doing and his current level of fear. Dr. Bates
testified that it would give him concern if Mother and Father did not complete
everything on their service plans.
J. CPS’s Removal of D.A. from Paternal Grandmother’s Home and
Placement in Ms. Foster’s16 Home
Following the unsupervised access that Paternal Grandmother allowed
Mother and Father to have with D.A. on October 26, 2013, at D.A.’s soccer game
and at the fall festival, CPS removed D.A. from Paternal Grandmother’s home
and placed him with Ms. Foster.
K. Foster Mother’s Testimony
Ms. Foster testified that D.A. had been in her home since November 7,
2013.17 Ms. Foster described D.A. as a very outgoing, highly intellectual boy
whose favorite subject is sharks. She said that he makes excellent grades and
can sit in the general classroom with other students without any challenges. Ms.
Foster testified that D.A. is a true leader and assists other children in her home
16
During the trial, the pseudonym “Ms. Foster” was given to D.A.’s current
foster mother.
17
The termination trial started on January 28, 2014.
20
who have intellectual disabilities by reading to them and by helping them with
their homework. D.A. is not prone to accidents, has good eye-hand coordination
that he uses at bowling each week, and has never injured himself in Ms. Foster’s
presence or at school.
Ms. Foster’s autistic grandson lives with her, so she was familiar with how
to handle situations that come up with autism. Ms. Foster testified that she uses
the “thinking corner” to discipline D.A. or has a conference with him. She said
that sometimes it takes D.A. until the next day to respond to her questions but
that he is “very, very respectful” and will address her questions. Ms. Foster
stated that D.A. is a young man of high integrity and always tells the truth.
Ms. Foster said that D.A. talks about his visits and mostly Mother and
Paternal Grandmother. Ms. Foster testified that D.A. loves Mother and Father
“very, very much” and talks about how Father taught him chess. Ms. Foster said
that after a recent visit, D.A. said that he did not communicate with his parents
during the visit; he played chess with Father on the computer and watched
movies. Ms. Foster stated that on numerous occasions, D.A. had said that he
loves Father but is afraid of him. D.A. said that Father had hurt him and that he
likes being in Ms. Foster’s home because she will not hit him.
L. CASA Volunteer’s Testimony
Len Baird, D.A.’s CASA volunteer, testified that he had been with D.A.
since a week after his removal from his parents. Baird said that D.A. was “very,
very thin” the first time he met him and that he was quiet but pleasant. Baird said
21
that D.A. had put on weight, had been able to verbalize more, did well in school,
and was polite. Baird testified that D.A. had gotten stronger and was able to
jump on a trampoline and had learned to ride a bike.
Baird had attended all of the hearings and had tried to observe most of the
visits. Baird testified that at the first visit that he attended, Father was arrested
on pending criminal charges involving the injuries to D.A. Baird testified that
Mother and Father had missed one visit because their car was broken and that
Father had missed one visit because he was on a business trip. Baird testified
that during the visits, D.A. did not talk much. Sometimes Mother, Father, and
D.A. took turns reading or playing a video game, but “a lot of the times,” Father
showed YouTube videos to D.A. Baird did not witness Father ask D.A. how he
was doing.
Baird testified that sometimes at the visits, the interactions between Father
and D.A. were not appropriate. Baird recalled a visit during which D.A. was
excited to play a bowling game because he felt like he was on a winning streak.
D.A. had some teeth pulled earlier that day, and Father said, “You have about as
good a chance of winning as you do growing those baby teeth back.” Father also
went over and threw some black pompoms into the trash; D.A. got quiet, and his
eyes filled with tears. Neither parent comforted D.A. when his eyes filled up with
tears. During another visit when D.A. was wearing a 4-H cap because Paternal
Grandmother had gotten him involved in 4-H, Father kept mocking D.A. by
repeating in a sarcastic country accent a word that D.A. had used when he had
22
explained 4-H to his parents. The visits were never terminated, but the CPS
facilitator redirected the conversation at two or three visits during which Father
had talked about genetics and computer programming with D.A.
Father told Baird on March 28, 2013, that he had spanked D.A. only four
times in his life and that there would be no more spankings.
When Baird called Father on July 31, 2013, to obtain the parents’ new
address, Father told Baird that everyone was against them and was trying to
make them out to be bad parents, that the photos of D.A.’s injuries had been
doctored, that D.A. did not tell the truth, and that D.A. still had not told the truth.
Father also asked Baird why he had told the court at a previous hearing that all
the visits had not been positive. Father said that he had never spanked D.A.
before and that the spanking on October 31 was an exception because there was
a different story than what was in the file. Father questioned why D.A. had been
moved to Paternal Grandmother’s house when Mother and Father had always
been good parents. Father further stated that the night he had spanked D.A., “it
might have been excessive,” but he was never told any rules about spanking. As
of July 31, 2013, Father was still referring to the incident as a spanking. Father’s
statements concerned Baird because Father was not taking responsibility for the
injuries that he had inflicted on D.A.
Baird said that D.A. was shy when he first met him but that after he was
removed from Paternal Grandmother, he had gained confidence and was very
23
outgoing. Baird testified that D.A.’s interactions with Ms. Foster were calm and
positive and that she had a very organized, quiet, structured home.
M. CPS Caseworker’s Testimony Regarding Father’s Visits
and Compliance with Service Plan
Gale Davis, D.A.’s CPS caseworker, testified that she had observed eight
to ten visits between D.A. and his parents; none of the visits were terminated, but
she did have to redirect Father because he was too loud. Davis said that Father
usually brought electronics like his phone, an iPad, or a Kindle to the visits and
that Father was redirected when he used his phone or his Kindle to show videos
at the visits. Davis testified that they had to keep changing the time for the visits
because of the parents’ excessive tardiness. Davis did not believe that D.A.’s
anxiety regarding the visits was the result of being transported to the visits in
Lake Worth but instead believed that his anxiety was the result of visiting with
Father. During the times when Davis transported D.A. to visits, he did not
express that he loved Father and Mother.
Davis testified that Father’s service plan required him to participate in
individual counseling, to attend parenting classes, to submit to drug testing,18 to
refrain from criminal activity, and to show proof of financial stability and suitable
housing. Davis went over the service plan with Father on December 10, 2012,
and Father was clear on what the Department’s expectations were. Father,
18
The Department later determined that it was not necessary to request
drug testing.
24
despite receiving his service plan in December, did not start working it until late
February 2013.
Before he started individual counseling, Father expressed that he did not
feel like he needed to have any individual counseling. Father went through
individual counseling but was discharged unsuccessfully.
Father was given two options for parenting classes, but he did not
complete either of the two options approved by CPS. After voir dire for the
termination trial concluded, Father gave Davis a certificate from the AJ Nova
Group, attempting to show that he and Mother had completed a four-hour
parenting class, but Davis was unfamiliar with the curriculum provided by this
unapproved group and said that the approved curriculum was eight or twelve
hours. Father therefore did not successfully complete parenting classes.
Davis testified that she was not aware of Father’s engaging in any criminal
activity while the termination case was pending.
Father did not provide proper proof of his income; after voir dire concluded,
Father attempted to provide proof of his income based on some handwritten
papers that say “Prestigious Worldwide” on them. Davis testified that Father and
Mother have housing, but Davis had not received a complete copy of their lease;
the one page that she was given did not have Mother’s name on it and did not
say whether they could have a child live with them.
25
Father was asked to attend a batterer’s intervention class, and Mother was
asked to go to a victim’s class because of domestic violence in the home; Father
and Mother completed those services.
In April 2013, CPS’s plan changed from reunification to a concurrent plan
of termination because Davis had not received proof that the service plans had
been completed.
Davis testified that the Department’s concern was that D.A. had been
beaten excessively. Davis testified that in determining whether a child should be
returned to his parents, she looked for the parents (1) to acknowledge the
situation that brought the child into care; (2) to engage in services; and (3) to
demonstrate that there has been a change of attitude, heart, or mindset that
would cause them to be protective. Father had not acknowledged that it was
wrong to beat D.A.; Father told Davis that he did not do anything wrong and that
it was his right to discipline his child. Father had not completed his service plan,
and to Davis’s knowledge, Father had not demonstrated that he had made the
necessary changes to prevent D.A. from being harmed like he was on Halloween
2012.
N. Father’s Counseling
Andrew Santi, a licensed professional counselor with Merit Family
Services, testified that Father was one of his clients in May 2013. Santi testified
that Father did not seem to care to be in counseling and was not forthcoming in
26
his answers, which appeared to contradict themselves and were vague or
philosophical.
Father said that he smokes e-cigarettes because it “looks cool and helps to
promote [his] products” and that he drinks wine “every once in a while.” He
admitted that he had experimented with marijuana three times at age sixteen.
Father told Santi that he had been arrested for pandering in 2008 and that he
had been arrested for felony unauthorized use of a motor vehicle and for
possession of cocaine.19 Santi said that Father downplayed all of the charges
and explained them in a way that took the blame off himself and that Father
seemed to not be able to recall the name of the pandering charge or what it
meant.
Father told Santi that he had spanked D.A. because D.A. had sneaked out
of the house on Halloween night to go across the street to see a female friend
whose parents were “into drugs” and other illegal activity and then had lied about
having gone there. Father told Santi that he had accidentally bruised his son.
Father was not willing to accept that the injuries were child abuse.20 Father
referred to it many times as having been unfortunate and said that it was a one-
time incident, that he and his family had no history of violence, and that it did not
19
The record includes two convictions dated June 25, 2010, for unlawful
possession of a controlled substance (cocaine) and for unauthorized use of a
motor vehicle for which Father was sentenced to six months in jail.
20
Santi did not recall reading a March 28, 2013 note from the prior
counselor at Merit in which Father admitted that the incident had crossed the line.
27
seem like that big of a deal. Father told Santi that CPS was conspiring against
him, that the case was built on lies, and that CPS was trying to remove D.A. for
no good reason.
Father’s conversations did not give Santi any indication of the extent of the
injuries on D.A. During the termination trial when Santi was shown the pictures
of D.A.’s injuries, Santi had a shocked look on his face because “[t]hose pictures
were not what I envisioned from what [Father] had described to me.” Santi
testified that Father had minimized D.A.’s injuries.
Santi testified that Father “seemed somewhat strangely detached
regarding all of this about his case,” and Santi did not feel that Father took the
counseling or the CPS case very seriously. Santi testified that when people do
not take the reason that they are in counseling seriously, it makes it difficult to
make any progress through counseling. Santi did not believe that Father was
willing to change what was going on in his life.
Santi saw Father only once after developing the treatment plan because
Father had completed a total of twelve counseling sessions between his sessions
with Santi and Father’s previous counselor. Santi testified that Father had not
made any progress toward the goals identified in his treatment plan. 21 When
21
The goals for counseling were to improve and develop more effective
parenting skills, to develop more assertive communication behaviors, to improve
Father’s emotional and conflict management, to establish more stability and more
boundaries in the home, and to explore new ways of reducing and managing
stress.
28
Santi informed Father that he had not successfully attained the goals that had
been set out for him and that more sessions were needed, Father became very
upset, very agitated, and indignant. Father was unsuccessfully discharged from
counseling because the long-term and short-term goals were not met.22
O. Father’s Testimony
Father testified that he and Mother had married around age eighteen after
meeting when they were eleven or twelve. Father testified that D.A. is his only
son.23
Father testified that Mother mostly cared for D.A. when he was young
because Father worked twelve hours a day, six days a week. Father testified
that he has always provided financially for D.A. Father owns Wise Distribution
and does direct marketing and sales of perfume, cologne, audio books, and
electronic cigarettes. Father testified that it was 100% not accurate when Davis
testified that Father had not provided any documentation for his income; Father
testified that he had provided his tax information.
22
The therapy notes state,
This therapist still has significant concerns about [Father’s]
judgment, decision-making, emotional/conflict management, his
potentially abusive and controlling relationship with his wife and son,
and overall incredibly narcissistic perspective and attitude, but he
appears unwilling and/or incapable of exploring the issues in his life
and/or this unhealthy perspective at this time and further sessions
will likely be fruitless.
23
Father has a daughter with whom he no longer has contact; she is not
involved in this appeal.
29
Father and Mother lease a house in Grand Prairie and have a room waiting
for D.A., although Father noted that D.A.’s belongings are partially in his closet
and partially in the attic because D.A. had not lived with them since they moved
into this house. Father said that there is always food in their house, that they
prepare healthy meals, and that he and Mother read to D.A. every night. Father
testified that their home has structure and that it is calm, except for when they
are joking and playing. Father testified that he had never hit Mother and that the
police had never come to their home in response to a domestic disturbance call.
Father testified that D.A. “at the end of age five” initially went to stay with
Paternal Grandmother for the summer while Mother and Father went to Las
Vegas for Father’s job. Father said that he “got in trouble with the law
enforcement agency” and was not allowed to come back to Texas in a timely
manner,24 so D.A. remained with Paternal Grandmother for a year and attended
kindergarten in Jacksboro.
Father and Mother returned to Texas when D.A. was six,25 and he went to
first grade in Arlington. Father said that this is when D.A. developed his love for
sharks and also enjoyed playing with Legos and playing outside. Father said that
24
Father had trouble admitting that he had pleaded guilty to the charge of
possession of cocaine. But Father admitted to D.A.’s attorney ad litem that
Father used to sell drugs.
25
When Father picked up D.A. from Paternal Grandmother’s, he believed
that D.A. had a light version of autism.
30
D.A. attended second and third grade in Arlington and that he had won numerous
awards.
Father said that Mother felt that she was spanked too often and too much
and that nothing positive came from it, so Father said that they were trying not to
do that. Father’s intention when he used corporal punishment in the past was to
redirect D.A. by inflicting some level of pain for a negative stimulus response.
Father testified that he had previously spanked D.A. on four occasions: the first
time was for opening the door to a census worker and giving him information, the
second time was for not telling Father that a girl had fought him, the third time
could not be recalled, and the fourth time was when Father spanked D.A. with
the belt on Halloween.26 Father’s understanding was that if behavior warranted a
spanking, “then it need[ed] to send a message” and that was the discipline that
he had used on D.A. “on the one occasion.”
Father testified that the plan on Halloween 2012 was to go trick-or-treating
around the neighborhood. Father talked to Mother for a little while,27 and when
Father went to get D.A., he was not in the house. Father testified that he
26
Father said that Madden had lied when she testified that Father had told
her at the hospital that he had not used his hand during previous spankings
because he did not think that he could use his hand. Father thought that he had
said he had used a belt more than once. He testified that he had used a belt
when D.A. opened the door to the census worker.
27
Father testified that Mother’s great-grandmother had passed away on
October 29, 2012; that Mother had been more emotional than he had ever seen
her; and that she had stayed that way for two weeks after the loss.
31
checked the living room, the backyard, and D.A.’s room. Father called out for
D.A. and went looking for D.A. in the neighborhood for ten to fifteen minutes.
Father said that he was very concerned and that his heart was racing. Father
decided to go back to the house to tell Mother that they needed to look for D.A. in
the other direction, and Father found D.A. sitting in the living room. Father yelled
at D.A., questioning where he had been, and D.A. did not respond. Father said
that D.A. had not been trick-or-treating, but he did not say where he had been.
Father asked D.A. a few more times with different wording and went to get a
belt28 “to scare him into telling [] the truth.” Father then brought D.A. into Father’s
bedroom “to further make him feel like, hey, that you might really, really get a
spanking, you need to, you know, start talking to me so we can open up so we
can talk.” Father said that he spanked D.A. around seven times, “give or take
one or two.” Father admitted that he had told the CPS investigator that he had
spanked D.A. for five minutes but clarified that the spanking was not continuous
but was interspersed with his asking D.A. questions. Father did not see the belt
hit D.A. in the face. Father testified that after he spanked D.A., he realized that
he might have been too aggressive and that D.A. was not responding to him
because he was afraid and freezing up. Father told D.A. to stand in the corner
for three to five minutes. After Father put D.A. in the corner, Father apologized
and talked to D.A. about the importance of telling the truth and not leaving the
28
Father said that the belt was a stylish belt, belonging to his wife, and was
made of fake leather with a clasp.
32
house. Afterwards, they played some games at home and did not go trick-or-
treating.
Father said that he was trying to get D.A. to tell the truth, 29 and it got out of
hand. Father testified that he was “unconscious”30 when he made the decision to
use corporal punishment on October 31. He said that after the event, he
remembered the details about the belt and hitting D.A. seven times, but he did
not know what was going on inside his head; he testified that his mind was not
right. Father testified that he had previously spanked D.A. on the butt. When
asked why he hit D.A. on the back and on the face on October 31, Father said, “I
don’t actually really know that answer myself: I mean, I know that -- what -- I
wasn’t going to spank him. I was trying to threaten him and I think I was just,
like, really, like -- I was outside of my right mind truly in -- in that time period.”
Father said that he knows what abuse feels like because his great-grandmother
abused him and that he believed that the discipline had helped him, 31 but Father
did not believe that a beating like D.A. had suffered was helpful to D.A.
29
Father testified that D.A. had told him a lie on several locations, but
Father agreed with Ms. Foster’s testimony that D.A. would rather remain silent
than tell a lie.
30
Father said that when he described his behavior as being unconscious,
he did not mean unconscious as in dead but rather that he was “not aware of
[his] unconscious behaviors.”
31
Father testified that he was not spanked very often but that when he was,
his great-grandmother retrieved a switch or a flyswatter and “whoop[ed]” him;
sometimes it broke the skin and left marks and bruises. Father said that his
stepfather’s mother had used a belt or her hands.
33
Father testified that when he saw the photographs of D.A.’s injuries in
December 2012, he was “in denial a little bit.” Father said that the photographs
he had received in discovery were “pictures of pictures” and looked like they had
been altered. Father did not believe that D.A.’s injuries “had looked like that”; he
“didn’t think that they could be that bad.” But Father admitted that he could not
say what D.A.’s back had looked like on Halloween after the beating because
D.A. was wearing a costume and because Father did not put D.A. to bed or wake
him the next morning. Father ultimately agreed that the pictures showed a
beating rather than a spanking.
Father said that the photographs of D.A.’s injuries and the video of D.A.’s
forensic interview32 made him feel remorse and “[a] lot of emotions.” He said that
he had shared those emotions with every single person he had talked to since he
had seen the photos.
Father testified that everything about D.A.’s injuries was serious: the fact
that the belt had hit D.A. in the face, which was unintentional; the level of
disregard for that to have happened; and Father’s inexperience with spanking
with a belt. Father admitted that he had caused the injuries on D.A. and that
there was nothing else that could have caused D.A.’s injuries except Father’s
blows to D.A. with the belt.
32
Father said that when the video with D.A. was played, he felt bad for D.A.
because Father had put him in that situation and because he was probably
confused about how to respond.
34
Father testified that he had confessed to the detective that he had given
D.A. a spanking,33 that it was excessive, and that he had also confessed to his
first counselor, Santi, Davis, and the CASA volunteer. Father said that they were
twisting his words to say that he had not confessed in order to sway the jurors.
Father said that Davis and the CASA worker were purposely lying by saying that
he and Mother did not take parenting classes. Father testified that Davis had lied
“over and over,” that she had switched the times of their visitations, that she had
yelled at him on multiple occasions, and that he had recorded her because he
“felt like there was something funny going on since -- since day one.”
Father testified that he had attended his counseling sessions,34 that he had
bought a $150 cognitive behavior therapy textbook, that he had bought a book
entitled How to Discipline Without Spanking or Yelling, that he had read books
and articles and had watched videos, that he had researched Asperger’s, and
that he had taken a parenting class. Father said that he and Mother gave Davis
the certificate from their parenting class on the first day of the termination trial.
33
Father disagreed that he had always called the incident on Halloween
2012 a “spanking.”
34
Father testified that he had changed counselors because his first
counselor was located too far away. Father testified that he could not
understand Santi’s method and that Santi was late to all of the sessions. Father
testified that he did not know why Santi wanted Father to continue counseling
because he had admitted to wrongdoing and understood “how heinous it was
thoroughly.”
35
Father said that he had attended every session of an eighteen-week batterer’s
intervention class.
Father testified that it was not true that the CASA volunteer had attended
most of the visits; Father recalled that the CASA volunteer had attended only four
or five visits. Father testified that D.A. had never been afraid in the visits and that
the evidence shows that D.A. is not fearful of Father. Father said, “Everyone
who has ever seen a visit knows that my visits go well. It’s not -- they’re not
being -- they’re intentionally being dishonest. They know that the visits are good.
They’re saying that on purpose.” Father said that during the visits, D.A. enjoyed
watching science videos. Father said that they play a lot of competitive games
and joke around a lot. Father said that D.A. got too loud but that Father was
never redirected for being too loud; “[t]hat was a bald-faced lie.” Father said that
there were purple pompoms in the room that he played with, but he had never
thrown them in the trash. He said, “Could you imagine that? Me standing up and
throwing somebody else’s -- somebody else’s toys in the trash? That would be
absurd. But this whole thing is absurd.” Father testified that he does not have a
negative opinion about 4-H and said that if he had used a country accent, he was
just joking around and being funny; Father could not recall what he had said
about 4-H because it was not remarkable. He said that D.A.’s eyes never welled
up with tears and that they joked around all the time. Father said that the
testimony about this was “[c]omplete fabrication.” Father later admitted that they
were redirected about four times during the visits and that the person who
36
transported D.A. to the visits always agreed that they responded very well to
redirection. With regard to the unauthorized visit to D.A.’s soccer game and fall
festival, Father admitted that he had violated the trial court’s order requiring
supervised access to D.A.
Father testified that with regard to his service plan, the hard part was trying
to create the work schedule and work in all the things they had to do with only
one vehicle and making changes when the visits were shifted around. Father
admitted that he was not working on all of the services at the same time.
Father testified that he could guarantee that the discipline that occurred on
October 31, 2012, would never happen again because it was not a habit; it was
one occasion. Father said that he had learned about different emotional triggers
and “the different resources.” Father said that he had previously believed that
disciplining was a parent’s right, but after studying cognitive behavior therapy, his
“philosophy on parenting completely is different.”
Father testified that he loves D.A. Father agreed that D.A. did not deserve
the level of discipline that he received on October 31, 2012. Father testified that
he deeply regrets everything that had occurred with D.A. Father testified that this
has been on his mind every single day since it happened and said that he would
do anything to get D.A. back; he would jump through “many hoops and fiery
rings, whatever is asked” to get D.A. back. Father said that his mind cannot
grasp the concept of his never seeing D.A. again.
37
P. Mother
Mother testified that she met Father in middle school and had been
married to him for ten years at the time of the termination trial. Mother testified
that she was not a victim of domestic violence and that Father had never hit her
or threatened to hit her. Mother testified that Father would walk out and go
somewhere before he ever put his hands on her. Mother testified that she had
not had a black eye since she was six years old. Mother later admitted that she
had shown up at her family’s home with a black eye in 2013 after she had gotten
into a fight with a girl when she worked at Cabaret East.
Mother testified that she believes that D.A. has Asperger’s. She said that
D.A. got in trouble at school for taking too long in the bathroom because he had a
vivid imagination and his mind wandered. Mother testified that D.A. would not
say anything if he knew it was a lie and that it took him time to respond to
questions in a timely manner due to his Asperger’s. Mother testified that Father
did not get frustrated with D.A.’s process of responding because Father was very
aware of D.A.’s condition and how D.A.’s mind worked. Mother testified that
Father had never disciplined D.A. for not answering a question quickly enough.
On the night in question, Mother said that Father did not alert her when he
discovered that D.A. was not in the living room; she was grieving for the loss of
her great-grandmother. Mother said that Madden had lied when she testified that
Mother had told her that she had heard Father spank D.A.; Mother testified that
38
she did not hear Father spank D.A. Mother testified that she did not play games
with Father and D.A. after the beating on October 31.
Mother testified that on November 1, she went to pick up D.A. after school
at the normal time and saw an ambulance heading to the school. She testified
that no one from the school had called her. After she waited a while and D.A. did
not come outside, she went inside the school. Two police officers came toward
her, told her to go into the office, and one of the police officers took her cell
phone.
Mother admitted that she had told Madden that she had told D.A. to lie
about the bruise on his face. Mother told D.A. to lie and say that he fell and got
the bruise on his face because she did not want it “being blown out of
proportion.”
Mother said that she had never seen D.A. with bruises like the ones he
had received on October 31 and that D.A. did not have any bruising on his body
in the days preceding October 31. Mother testified that this was the first time that
D.A. had been brought into CPS’s care.35 Mother acknowledged that Father was
arrested on the injury-to-a-child charge during the middle of one of the visits.
35
The record revealed prior CPS involvement with the family that did not
result in removal: on January 5, 2012, CPS received a referral alleging physical
neglect of D.A. by his parents because he was eight years old and had not grown
in the past two years; no evidence was found to support the allegations of
physical neglect.
39
Mother said that she and Father had asked D.A. at every visit how he was
doing. Mother testified that they played during every single visit, that they were
loud, and that D.A. was happy to see them.
Mother said that they were never told that they needed to provide
additional pages from their lease, nor were they told that CPS needed proof of
income other than Mother’s handwritten document.
Mother felt like what Father had done to D.A. was “extreme,” and they
have since talked about it. Mother agreed that it was a “beating.” Mother
testified that she knows that Father would not deliberately take a belt and strike
D.A. across the face with it. Mother agreed, however, that the injuries Father had
inflicted on D.A.’s back posed a danger to D.A. and that the injuries were
deliberate. But Mother testified that Father should not be facing charges for the
injuries he had caused D.A.
Mother testified that she would not be with Father if she thought he was a
danger and that Father had never displayed any kind of violence or any red flags.
Mother later testified that what Father did on Halloween 2012 raised red flags but
that Father did not represent an ongoing threat to D.A.
Q. Mother’s Counselor
Jessica Barrientes, a counselor with Merit Family Services, testified that
she met with Mother. Mother explained that CPS became involved because D.A.
had been disciplined by Father and had received an injury on his back and one
on his face, but she did not feel that it was abusive. Mother said that the injuries
40
were an accident, and she never moved from taking the position that the injuries
were not the result of child abuse. Mother said that it was a one-time incident.
R. Maternal Grandmother
Maternal Grandmother testified that Mother told her that she did not go to
the hospital to see D.A. on November 1, 2012, because she was scared.
Maternal Grandmother testified that Mother walked into her house in
March 2013, and Maternal Grandmother did not recognize Mother because she
had bruises all over, “from head to toe.” Mother said that she had a fight at work,
but Maternal Grandmother did not believe Mother. Maternal Grandmother
testified that Mother spent the night with her in March and asked her to drop her
off at Walmart the next day; Mother said that Father would pick her up at
Walmart. Mother did not let Maternal Grandmother take her home. Maternal
Grandmother testified that Mother had shown up at Maternal Grandmother’s
house five times.
S. Paternal Grandfather36
Paternal Grandfather testified that Father had never lived with him when
he was growing up but that he had disciplined Father “with a belt across the
behind,” that he did it once or twice at most, but that he did not check to see if he
left bruises. Paternal Grandfather testified that Father had lived with his maternal
grandmother and that she had also disciplined him with a belt.
36
Paternal Grandfather is not married to Paternal Grandmother.
41
Paternal Grandfather testified that Father had told him that he was fearful
on October 31 because D.A. had left the house to go trick-or-treating on his own
without communicating to Father; Father drove up and down the street looking
for him. Paternal Grandfather testified that when D.A. went across the street to a
place that was suspected of bad activities instead of coming straight home, “that
set emotions a little high.” Paternal Grandfather testified that Father told him that
in the moment, “it became maybe more aggressive than he would have liked” but
that his heart was in the right place; he was not trying to damage or beat up D.A.
Father never told Paternal Grandfather that it was possible that D.A. had never
left the house on the evening of October 31.
Paternal Grandfather testified that he had seen the photos of D.A.’s
injuries and agreed that the corporal discipline had gotten out of hand. Paternal
Grandfather testified that he did not believe the injuries to D.A. constituted child
abuse because Paternal Grandfather believes that child abuse is a continuance,
not a one-time occurrence.37 Paternal Grandfather testified that neither he nor
Father understand the law on child abuse.
Paternal Grandfather testified that Father felt regret and repentance in the
year following the beating. Paternal Grandfather testified that Father loves D.A.
and that it would be a tragedy for Father not to see D.A. again.
37
Paternal Grandfather testified that he had never seen D.A. with bruises
on him that were of concern.
42
T. Father and Mother’s Housemate
Matthew testified that at the time of the termination trial, he had been living
with Mother and Father for a year and a half. Matthew worked for Father and
needed a place to live, so Father had taken Matthew “under his wing.” Matthew
said that Mother and Father’s household is “always a beautiful atmosphere” and
that there is never a negative vibe.
Matthew testified that Father is a good dad. Matthew had never witnessed
any physical abuse of D.A., had never seen marks or bruises on D.A., had not
witnessed Father be abusive to Mother, and had never seen Father lose his
temper. Matthew admitted that he was out of state on the night of the beating.
U. Recommendations
Davis testified that TDFPS’s plan was for Father’s parental rights to be
terminated, making D.A. eligible for adoption. Ms. Foster said that D.A. has not
been in her home very long, but she was willing to consider adopting him.
Baird recommended that the jury terminate Father’s parental rights. Baird
testified that termination of the parental rights is in D.A.’s best interest. Baird
based his recommendation on the large change that he had seen in D.A. in the
short period of time that he had been in Ms. Foster’s home; Baird said, “When
you give [D.A.] the time to be able to speak, he’s blossomed.”
Father testified that it was in D.A.’s best interest to live with Father and
Mother.
43
Paternal Grandmother testified that D.A. loves Father and that she did not
think that Father’s parental rights should be terminated; she did not think that
would be in D.A.’s best interest.
Matthew testified that even after seeing pictures of D.A.’s injuries, which he
would not describe as a beating, he believed that returning D.A. to Mother and
Father was in D.A.’s best interest.
V. Father’s Parental Rights Terminated
After hearing the above testimony and reviewing the exhibits that were
admitted into evidence, the jury found by clear and convincing evidence that
Father had knowingly placed or had knowingly allowed D.A. to remain in
conditions or surroundings that had endangered D.A.’s emotional or physical
well-being, that Father had engaged in conduct or had knowingly placed D.A.
with persons who had engaged in conduct that had endangered D.A.’s emotional
or physical well-being, and that termination of the parent-child relationship
between Father and D.A. was in D.A.’s best interest. Based on the statutory
grounds found by the jury, the trial court ordered the parent-child relationship
terminated. Father thereafter perfected this appeal.
III. STANDARDS OF REVIEW
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
44
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); E.N.C., 384 S.W.3d at 802.
“[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due process demands
this heightened standard because “[a] parental rights termination proceeding
encumbers a value ‘far more precious than any property right.’” E.R., 385
S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397); In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802.
Evidence is clear and convincing if it “will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d
at 802.
For a trial court to terminate a parent-child relationship, TDFPS must
establish by clear and convincing evidence that the parent’s actions satisfy one
ground listed in family code section 161.001(1) and that termination is in the best
interest of the child. Tex. Fam. Code Ann. § 161.001; E.N.C., 384 S.W.3d at
45
803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—
Fort Worth 2012, no pet.).
A. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In this
case, Father challenges the endangering-environment and endangering-conduct
findings. See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
We review all the evidence in the light most favorable to the finding and
judgment. Id. We resolve any disputed facts in favor of the finding if a
reasonable factfinder could have done so. Id. We disregard all evidence that a
reasonable factfinder could have disbelieved. Id. We consider undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. See id. “A lack of
evidence does not constitute clear and convincing evidence.” E.N.C., 384
S.W.3d at 808.
46
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573, 574. And even when credibility issues appear in the
appellate record, we defer to the factfinder’s determinations as long as they are
not unreasonable. Id. at 573.
B. Factual Sufficiency
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the verdict with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated section 161.001(1)(D) or (E) and that termination of the parent-
child relationship would be in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(1)(D)–(E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of
the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
47
IV. SUFFICIENCY OF EVIDENCE TO SUPPORT ENDANGERING-ENVIRONMENT AND
ENDANGERING-CONDUCT FINDINGS38
In his first and second issues, Father argues that the evidence is legally
and factually insufficient to support the section 161.001(1)(D) and (E) findings.
Father contends that the incident that occurred on October 31, 2012, was the
result of a single act by Father and does not meet the standard of a course of
conduct required for termination of his parental rights.
A. Law on Endangerment
“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under section 161.001(1)(D), it is necessary to examine the evidence
related to the environment of the child to determine if the environment was the
source of the endangerment to the child’s physical or emotional well-being.
J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child. In
re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For
example, abusive or violent conduct by a parent or other resident of a child’s
home may produce an environment that endangers the physical or emotional
38
We have engaged in a thorough review of the entire appellate record,
which contains approximately 1,800 pages and two videos. Based on the Texas
Supreme Court’s recent decision in In re A.B., No. 13-0749, 2014 WL 1998440,
at *6–7 (Tex. May 16, 2014), when affirming a jury verdict, we are not required to
detail all of the relevant evidence that we considered in reaching our decision to
affirm.
48
well-being of the child. See id. at 776–77; Ziegler v. Tarrant Cnty. Child Welfare
Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.).
Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct
result of the parent’s conduct, including acts, omissions, or failures to act. See
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). It is
not necessary, however, that the parent’s conduct be directed at the child or that
the child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at
125. The specific danger to the child’s well-being may be inferred from parental
misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d
732, 738 (Tex. App.—Fort Worth 2004, pet. denied). As a general rule, conduct
that subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex.
App.—San Antonio 1998, pet. denied). A factfinder may infer from past conduct
endangering the well-being of the child that similar conduct will recur if the child
is returned to the parent. In re M.M., No. 02-08-00029-CV, 2008 WL 5195353, at
*6 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.). Even evidence of
criminal conduct, convictions, and imprisonment prior to the birth of a child can
support a finding that a parent engaged in a course of conduct that endangered
the child’s well-being if the Department introduces evidence concerning the
offenses and establishes that the offenses were part of a voluntary course of
49
conduct that endangered the child’s well-being. E.N.C., 384 S.W.3d at 804–05;
In re A.J.M., 375 S.W.3d 599, 606 (Tex. App.—Fort Worth 2012, pet. denied).
In conducting an evidentiary sufficiency review of a factfinder’s subsections
161.001(1)(D) and (E) findings, this court has previously considered, among
other things, evidence that a child was exposed to domestic violence. See In re
M.R., 243 S.W.3d 807, 818 (Tex. App.—Fort Worth 2007, no pet.). Because the
evidence pertaining to subsections 161.001(1)(D) and (E) is interrelated, we
conduct a consolidated review. In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.—
San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.
B. Sufficient Evidence of Endangerment
As set forth above, Father admitted that he had caused the injuries to
D.A.’s face and back and that there was nothing else that could have caused the
injuries except Father’s blows to D.A. with the belt. Father ultimately agreed that
the pictures show a beating rather than a spanking and that everything about
D.A.’s injuries was serious. Father’s argument on appeal is that the single
“spanking” on October 31, 2012, does not constitute a course of conduct.
Section 161.001(1) provides that the court may order termination of the
parent-child relationship if the court finds by clear and convincing evidence that
the parent has “(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being
of the child; [or] (E) engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional
50
well-being of the child; . . . .” Tex. Fam. Code Ann. § 161.001(1)(D), (E). The
“course of conduct” language that Father references is thus not found in the
statutory grounds for termination listed in section 161.001(1)(D) or (E). See id.
Instead, the “course of conduct” language appears to come from Boyd,
which dealt with whether a parent’s imprisonment could constitute evidence of
endangering conduct under former Texas Family Code section 15.02(1)(E). 727
S.W.2d at 534.39 To the extent that case law requires a “course of conduct,” the
factfinder was free to believe that October 31, 2012, was not the only time that
D.A. had been beaten. Cf. Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (stating that evidence that a person has
engaged in abusive conduct in the past permits an inference that the person will
continue violent behavior in the future). The medical records revealed that the
bruises on D.A.’s back were in various stages of healing, indicating the possibility
of previous abuse; Father admitted that he had “spanked” D.A. on four
occasions, three of which had occurred prior to the incident in question; Madden
testified that Father had told her that he had never spanked D.A. with his hand;
D.A. was afraid of Father; and D.A.’s forensic interview and Paternal
39
The “course of conduct” language appears to have originated in H.W.J. v.
State Department of Public Welfare, 543 S.W.2d 9, 10–11 (Tex. Civ. App.—
Texarkana 1976, no writ). H.W.J., like Boyd, looked at terminating a parent’s
parental rights when the parent’s persistent criminality, which did not directly
endanger the child, led to protracted incarceration. 543 S.W.2d at 10–11.
51
Grandmother’s testimony indicated that D.A. had been hit previously with a
clothes hanger.
Father, moreover, did not seek medical treatment for D.A.’s injuries
following the Halloween 2012 beating. Additionally, Father violated the trial
court’s orders by having unsupervised contact with D.A. on two occasions.
Father’s conduct specifically directed against D.A. was not the only
endangering conduct that the jury had before it. Father failed to complete the
tasks on his service plan, including an unsuccessful discharge from individual
counseling and failure to complete a CPS-approved parenting class. The record
also includes Father’s admission that he had previously used and sold drugs and
contains the judgments for Father’s criminal convictions for unlawful possession
of a controlled substance (cocaine) and for unauthorized use of a motor vehicle
for which Father was sentenced to six months in jail.
Although there is conflicting evidence regarding whether Father was
abusive to Mother, the conflicting evidence is not so significant that a reasonable
trier of fact could not have reconciled the evidence in favor of its finding and
formed a firm belief or conviction that Father had knowingly placed or had
knowingly allowed D.A. to remain in conditions or surroundings that had
endangered D.A.’s emotional or physical well-being or had engaged in conduct
or had knowingly placed D.A. with persons who had engaged in conduct that had
endangered D.A.’s emotional or physical well-being.
52
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold (1) that there is some evidence of endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Father had knowingly placed or had knowingly allowed D.A. to
remain in conditions or surroundings that had endangered D.A.’s emotional or
physical well-being and (2) that there is some evidence of endangering conduct
on which a reasonable factfinder could have formed a firm belief or conviction
that Father had engaged in conduct or had knowingly placed D.A. with persons
who had engaged in conduct that had endangered his physical or emotional well-
being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E); J.T.G., 121 S.W.3d at
131 (holding evidence legally sufficient to support endangerment findings
because father had a history of domestic violence, drug abuse, and criminal
conduct).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with
our own, and after reviewing the entire record, we hold that a factfinder could
reasonably form a firm conviction or belief that Father had knowingly placed or
had knowingly allowed D.A. to remain in conditions or surroundings that had
endangered D.A.’s emotional or physical well-being and that Father had engaged
in conduct or had knowingly placed D.A. with persons who had engaged in
conduct that had endangered his physical or emotional well-being. See In re
53
N.S.G., 235 S.W.3d 358, 362–63, 368–69 (Tex. App.—Texarkana 2007, no pet.)
(holding evidence factually sufficient to support endangerment finding because
father had used drugs, had physically abused his wife, and had engaged in
criminal conduct); In re J.C., 151 S.W.3d 284, 288–89 (Tex App.—Texarkana
2004, no pet.) (holding evidence factually sufficient under section (E) because,
among other facts, father was indicted for injury to a child after beating child with
a belt and leaving bruises on child from his head to his toes).
We therefore hold that the evidence is legally and factually sufficient to
support the trial court’s endangering-environment and endangering-conduct
findings as to Father. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We
overrule Father’s first and second issues.
V. BEST-INTEREST FINDING
In his third issue, Father argues that the evidence is factually insufficient to
support the section 161.001(2) finding that termination of the parent-child
relationship between Father and D.A. is in D.A.’s best interest.
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).
We review the entire record to determine the child’s best interest. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative
of both the subsection (1) ground and best interest. C.H., 89 S.W.3d at 28; see
54
E.C.R., 402 S.W.3d at 249. Nonexclusive factors that the trier of fact in a
termination case may also use in determining the best interest of the child
include the following:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted);
E.N.C., 384 S.W.3d at 807; see E.C.R., 402 S.W.3d at 249 (stating that in
reviewing a best-interest finding, “we consider, among other evidence, the Holley
factors”).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
55
presence of scant evidence relevant to each factor will not support such a
finding. Id.
With regard to D.A.’s desires, although he did not testify at trial, the record
contains evidence that he was fearful of Father and that the bulk of D.A.’s
counseling sessions focused on helping him cope with his anxiety related to his
fear that Father would spank him at the visits if D.A. took too long to answer
Father’s questions. Father testified that D.A. was never fearful of him during the
supervised visits. But the record revealed that after the unsupervised visits that
Paternal Grandmother allowed D.A. to have with Mother and Father in October
2013, D.A.’s behavior deteriorated, and he began having a lot of behavioral
problems at school. The CASA volunteer reported that D.A. had adjusted well to
Ms. Foster’s home, was well behaved and compliant, had improved his social
skills, and was helping other children in the home. Additionally, D.A. told Ms.
Foster that he liked being in her home because she would not hit him Although
the record contains evidence that D.A. loves Father, the jury was entitled to find
that this factor weighed in favor of termination of Father’s parental rights to D.A.
With regard to the emotional and physical needs of D.A. now and in the
future, the record reveals that, in addition to basic needs,40 D.A. needs a home in
which his care providers are willing to learn about Asperger’s and how to work
with a child who has been physically abused. Dr. Bates testified that he would
40
One reference was made in the record that D.A. needs allergy
medication, but other times in the record, no medications were listed.
56
have a lot of fear about a household that rejects the idea that D.A. has
Asperger’s and that he would be concerned about a home in which the care
providers think that there is nothing wrong with the discipline that D.A. received
that caused his injuries. Dr. Bates stated that discipline for D.A. will have to be “a
little bit out of the norm, thinking outside the box” because corporal punishment is
not going to be effective and would probably “go the opposite way.” Dr. Bates
said that D.A. needs a home in which his care providers understand that when
D.A. does not respond to a question, he is locked up and possibly nervous, but
he is not being defiant. Dr. Bates summarized that D.A. needs a home with a lot
of understanding and that is calm, that provides structure, and that lets D.A.
know what is to be expected and what is going to happen. The record contains
conflicting testimony about the extent to which Father accepted D.A.’s Asperger’s
diagnosis, while the record reveals that Ms. Foster was familiar with handling
autistic children and provided a calm environment that allowed D.A. to thrive.
The jury was entitled to find that this factor weighed in favor of termination of
Father’s parental rights to D.A.
With regard to the emotional and physical danger to D.A. now and in the
future, the record reveals that D.A. is vulnerable due to his autism. Moreover, as
discussed above, after numerous counseling sessions, D.A. remained afraid that
Father would hit him if he did not respond quickly enough to Father’s questions
and that D.A. felt safe in Ms. Foster’s home because he knew that she would not
hit him. The record also revealed that Father did not complete a CPS-approved
57
parenting class. Father, however, testified that he could guarantee that the
discipline that occurred on October 31, 2012, would never happen again because
it was not a habit; that he had learned about different emotional triggers and the
resources to help him; and that after studying cognitive behavior therapy, his
“philosophy on parenting completely is different.” The jury was entitled to find
that this factor weighed in favor of termination of Father’s parental rights to D.A.
With regard to parenting abilities, the evidence detailed above reveals that
although Father expressed that he loves D.A. and attended most of the visits,
Father had not eliminated the physical and emotional dangers to D.A. Father
had not completed a CPS-approved parenting class. The record contains
conflicting testimony on whether Father took full responsibility for causing D.A.’s
injuries due to his references to the Halloween incident as a “spanking” and to his
initial disbelief that the pictures depicted the actual extent of the injuries that
Father had caused D.A. The record also reveals that it was the school and the
police who sought medical treatment for D.A.’s injuries, not Father. The record
further contains conflicting testimony on whether Father had fully accepted D.A.’s
diagnosis of Asperger’s and knew how to handle it. The jury was entitled to find
that this factor weighed in favor of termination of Father’s parental rights to D.A.
With regard to the programs available to assist Father to promote the best
interest of D.A., the record reveals that Father was not forthcoming during his
counseling sessions and had not worked all of the services available to him to
58
promote the best interest of D.A. The jury was entitled to find that this factor
weighed strongly in favor of termination of Father’s parental rights to D.A.
With regard to the plans for the child, Father planned for D.A. to live with
him and Mother. Father said that they had a room ready for D.A., but Father had
never provided CPS with proof of a lease, showing that D.A. could live at the
house, or income documentation, showing that Father could provide financially
for D.A. TDFPS planned for D.A. to be placed for adoption,41 and Ms. Foster
testified that she was willing to consider adopting D.A. The jury was entitled to
find that this factor weighed in favor of termination of Father’s parental rights to
D.A.
With regard to the stability of Father’s home, the record reveals that Father
and Mother had leased a home in Grand Prairie but had not provided CPS with a
copy of the lease showing that D.A. could live there. Father testified that their
home has structure and that it is calm, except for when they are joking and
playing. Because Mother and Father had frequently placed D.A. with Paternal
Grandmother for long periods of time and because Father faced the potential of
jail time for his pending criminal charge for injury to a child, the stability of the
home was in question. With regard to the stability of the proposed placement,
the record reveals that Ms. Foster’s home provides D.A. with an organized, quiet,
and calm environment that suits D.A. well. The CASA volunteer observed D.A. in
41
We note that based on the outcome of the trial, D.A. is not eligible for
adoption because Mother’s parental rights were not terminated.
59
Ms. Foster’s home and reported that he appeared to be well adjusted, calm,
happy, very clean, and well dressed. Ms. Foster testified that D.A. was welcome
to stay in her home for as long as he needed to stay. The jury was entitled to
find that this factor weighed in favor of termination of Father’s parental rights to
D.A.
With regard to the acts or omissions of the parent that may indicate that
the existing parent-child relationship is not a proper one, the analysis set forth
above—which details Father’s abuse of D.A., as well as D.A.’s fear of Father;
Father’s failure to meet D.A.’s physical and emotional needs; Father’s failure to
address the physical and emotional dangers to D.A.; Father’s convictions and
admissions that he had previously used and sold drugs; and Father’s failure to
take advantage of the services that were offered to ensure that he could provide
a calm, stable environment for D.A.—reveals that the existing parent-child
relationship between Father and D.A. is not a proper relationship. The jury was
entitled to find that this factor weighed in favor of termination of Father’s parental
rights to D.A.
With regard to any excuse for Father’s acts or omissions, the record
revealed that Father initially blamed D.A.’s bruises on a health condition that
caused him to bruise easily. Father testified that he was unconscious when he
made the decision to use corporal punishment on D.A. on Halloween 2012 and
that his mind was not right. Father initially believed that the pictures of D.A.’s
injuries had been altered because he “didn’t think that they could be that bad.”
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Father also said that he had not been told any of the rules about spanking and
that D.A.’s injuries were the result of his inexperience in using a belt. According
to Father’s counselor Santi, Father downplayed all of his prior criminal charges
and explained them in a way that took the blame off himself. Father said that it
was hard to work his services and run his business because they had only one
vehicle. Father claimed that everyone from CPS, his counselors, and the CASA
volunteer had conspired against him and had lied. The jury was entitled to find
that this factor weighed in favor of termination of Father’s parental rights to D.A.
After reviewing the entire record and weighing the evidence as it relates to
the Holley factors, we hold that the evidence is factually sufficient to support the
jury’s finding that termination of Father’s parental rights to D.A. is in D.A.’s best
interest. See Tex. Fam. Code Ann. § 161.001(2); Jordan, 325 S.W.3d at 733
(holding evidence factually sufficient to support the trial court’s finding that
termination of mother’s parental rights was in child’s best interest when most of
the best-interest factors weighed in favor of termination); M.R., 243 S.W.3d at
820–22 (holding evidence factually sufficient to support best-interest finding
because, among other things, children flourished in foster care, mother did not
work service plan, and parents exposed children to domestic violence). We
overrule Father’s third issue.
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VI. CONCLUSION
Having overruled Father’s three issues, we affirm the trial court’s judgment
terminating Father’s parental rights to D.A.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: July 31, 2014
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in the Interest of D.A., a Child
Combined Opinion