COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00137-CV
In the Interest of B.R., B.R., and § From the 30th District Court
B.E.R., Children
§ of Wichita County (11750-JR-A)
§ January 4, 2013
§ Opinion by Justice Gardner
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court‘s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Anne Gardner
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00137-CV
IN THE INTEREST OF B.R., B.R.,
AND B.E.R., CHILDREN
----------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
----------
MEMORANDUM OPINION1
----------
I. Introduction
Appellants B.E.R. (Father) and C.R. (Mother) appeal the trial court‘s
judgment terminating their parental rights to their three children: Bethany,
Brittany, and Brandon.2 In three issues, Father argues that the evidence is
1
See Tex. R. App. P. 47.4.
2
We use aliases for all children named in our opinion to protect their
identities. See Tex. R. App. P. 9.8(b)(2).
2
factually insufficient to support the jury‘s findings on statutory endangerment and
the children‘s best interest. Mother argues in one issue that the evidence is
legally and factually insufficient to support the jury‘s best interest finding. We
affirm.
II. Background
Mother and Father have five children: Blake, Bradley, Bethany, Brittany,
and Brandon.3 Bethany, Brittany, and Brandon were deposed in July 2011 and
again in 2012. At the time of the 2012 depositions, Bethany was thirteen,
Brittany was twelve, and Brandon was ten.
Trial was in March 2012, and the children‘s 2012 depositions were played
for the jury. Bethany testified that there had always been some sort of violence
between her parents. Bethany testified that she saw Father hit Mother, that there
were times when she could not see Father hit Mother but heard punching
sounds, and that Mother also hit Father. She testified that she was scared when
her parents fought and that she was afraid that Father would take their
arguments out on her. She also testified that she felt like her parents did not love
each other when they fought.
Brittany testified that Father hit Mother and that she went to her room when
her parents fought.4 She testified that she had heard Mother cry when Father hit
3
Only Bethany, Brittany, and Brandon are involved in this appeal.
4
Bethany and Brittany testified that when they used the term ―fighting,‖ it
included hitting.
3
her and that Mother had told her that she hit Father. She also testified that it was
scary when her parents fought and that she was afraid that she or her siblings
would get hurt. Brandon testified that he saw Father hit Mother several times.
He testified that he went to his room but that he still heard slapping sounds and
Mother crying. Brandon testified that he was scared that Mother would get really
hurt. He also testified that he saw Mother hit Father.
In October 2009, the Department of Family and Protective Services (the
Department) removed Bethany, Brittany, Brandon, and Bradley after the police
and SWAT team arrested Father for assault family violence. Police records
admitted at trial indicated that Bradley asked his girlfriend to call the police
because he heard what sounded like Mother being hit and choked. The records
further indicated that when police arrived at Mother and Father‘s home, all of the
lights were off, and no one answered the door. Father testified that after the
second doorbell ring, he looked out his window and saw a police officer in his
yard. Father also testified that he and Mother decided that the police were there
to arrest Mother.5 Father testified that he ―did not have a need to open up the
door‖ and that he went back to bed.6 Father testified that Mother then heard
5
Father testified that he thought the police were there to arrest Mother
because she had been to jail twice before.
6
When asked if he went to bed thinking that there was a police officer
hiding behind the bushes in his front yard, Father replied, ―Absolutely.‖
4
police call his name and that he got out of bed and went outside. Father was
arrested when he exited the home.
Several officers reported that they observed red marks on the right side of
Mother‘s neck and a bruise on her mouth that appeared to be covered with
make-up. Mother testified that she did not have any bruises. The police reports
stated that Mother was uncooperative, insisted that no one had been assaulted,
refused to allow police to photograph her, and expressed her hatred of police.
Father testified that he did not assault Mother.
After the removal, the trial court ordered the Department to return Bethany,
Brittany, and Brandon to Mother through a six-month monitored return.7 Father
testified that he was ordered to leave the home during the monitored return and
that he lived with his mother, M.R., for three months and then lived alone in an
apartment for three months.8 Mother testified that she knew Father was not
allowed contact with the children, but she allowed the children to make videos on
her phone that she sent to Father. Bethany and Brittany testified that Mother
took them to see Father during the monitored return and told them not to tell
anyone, but Mother disputed that testimony. Bethany, Brittany, and Brandon
testified that no one was hit or choked, that there was not much screaming and
7
Mother testified that she agreed to allow Bradley to remain in the
permanent custody of the Department.
8
Father testified that he did not work during that time and that M.R. and
Mother paid his bills.
5
yelling, and that things were better in their home when Father did not live with
them. Father testified that he returned to the home in May 2010.
Mother testified that she left Father in September 2010 to have an affair
with a woman who she worked with.9 She testified that she told her girlfriend that
she left Father because she did not want to argue with him anymore. Bethany
testified that Mother left because she was tired of Father hitting her. The children
remained in the home with Father while Mother was gone from September until
October 2010. Mother testified that Father did not work while she was gone and
that she left less than $1,000 in a bank account for Father to use to support the
children.10
Mother testified that she stayed in a hotel and then went to First Step, a
battered woman‘s shelter. She testified that she went to First Step for shelter,
not for the services they provide. The police were dispatched to First Step in
September 2010. Mother told police she was staying at First Step due to
domestic violence issues involving Father and that Father had followed her from
Wal-Mart to First Step. According to the police report, Mother yelled at Father to
leave her alone, and he continued to approach Mother even after police ordered
him to stop. The police then pointed a gun at Father and ordered him back to his
vehicle. The report also stated that Father had a knife in his front pocket and a
9
Mother testified that this was her second affair but her first homosexual
relationship.
10
Mother testified that she supported herself with her paycheck.
6
metal baseball bat in his vehicle. Mother denied that she yelled at Father and
testified that she did not see a knife or baseball bat or the police point a gun at
Father. Mother also testified that she was not concerned when Father followed
her to First Step.
In October 2010, Bethany told her school counselor that Father had ―ʻkind
of‘ choked her,‖ and the Department again removed the children from the home.
Bethany testified that she also told her school counselor that she was afraid of
Father and that Father was physical with her. Father testified that when
Department investigators came to his house, he would not allow them to speak to
his children unless he was in the room. He also testified that he told the children
not to talk to the Department unless he was present and that he instructed them
to call him if the Department came to their school. Father testified that he took
the Fifth Amendment multiple times at the adversary hearing when asked about
hitting and choking his children. He testified that he was then ordered to have no
further contact with the children.
Mother testified that she and Father agreed that the children were not to
associate with friends outside of school if Mother and Father were not present.
Mother testified that they did not allow the children to stay overnight at a friend‘s
house, have friends visit the home, attend birthday parties, talk on the telephone
unless it was to a family member, or go anywhere without Mother and Father
watching them. Father testified that he did not allow the children to answer the
door at his house, play in the front yard, or play with friends unless he could see
7
them. Bethany testified that her parents only allowed her to answer the door for
her brothers and that she was not allowed to answer the door for the police. She
testified that she had never been to a birthday party and that she had never had
a friend visit her house. Bethany testified that she did not have a life outside her
parents‘ home and that she and her siblings were kept in isolation when they
were not in school. Brittany testified that Father would not allow her to spend the
night at a friend‘s house, talk on the phone to friends, or answer the door at their
house.
Bethany acknowledged that her 2011 and 2012 testimonies differed and
that she did not tell the truth in her 2011 deposition.11 In her 2011 deposition,
Bethany stated that Father hit her only in August 2010, but she stated in her
2012 deposition that Father also hit her in September and October 2010 and that
he hit her before Mother left in September 2010. She also testified during the
2012 deposition that she did not know how many times Father had hit her
because he hit her ―all the time.‖ During the 2011 deposition Bethany testified
that Father had choked her twice, but she testified in 2012 that Father had
actually choked her over five times. Bethany also testified in 2012 that Father
had choked, punched, and slapped her in the face, stomach, arm, and back.
She testified that Father told her it was her fault that he had to choke her, that
Father had choked her because she smiled at a boy in the grocery store, and
11
Bethany suggested that she was untruthful in her first deposition because
she did not remember or did not want to remember.
8
that he had never apologized to her for hurting her.12 Father testified that he was
upset with Bethany when she winked and smiled at a boy in the grocery store,
but he denied assaulting her. Bethany also testified that she saw Father hit
every one of her family members and that Father hit her more than the other
children, that she and Father had argued almost nightly, and that Father had told
her not to tell anyone about the arguments and fighting.
Brittany testified during her 2012 deposition that she saw Father hit
Bethany and that he hit Bethany the most out of the three children. 13 Brittany
testified that she was reading a book while Father was talking and that he took
the book out of her hand and hit her on the shoulder with it. She also testified
that Father did not want her to tell people what happened in their home and that
he told her, ―[W]hatever is in this house stays in the house.‖
Brandon testified that Father tried to spank him because he did not clean
his room. He testified that when he tried to avoid the spanking, Father threw him
on the couch and choked him with both hands. Brandon testified that he could
not breathe when Father choked him and that it hurt and scared him. He testified
that Father had not apologized for choking him. Brandon also testified that he
saw Father hit Bethany and choke his oldest brother Blake.
12
Bethany testified during the 2011 deposition that she remembered
smiling at a boy but did not remember that Father choked her.
13
Brittany acknowledged that she testified in 2011 that she had not seen
Father hit Bethany.
9
Bethany testified that she first disclosed that Father checked her to see if
she was having sex in September 2011. Bethany and Brittany each testified that
Father told them to come into his bedroom, remove their pants and underwear,
and lie down on his bed.14 They testified that Father told them to spread their
legs and that Father then looked at their private areas below their waists. 15
Bethany testified that Father told her he checked her because he thought she did
something with a boyfriend, and Brittany testified that Father told her he checked
her to see if she had sex with a boy.
Bethany testified that Father first checked her when she was ten and that
he checked her twice a month. Brittany testified that she was in elementary
school when Father first checked her and that she did not remember how often
he checked her. She testified that she initially told CPS that Father did not check
her because she was embarrassed and afraid that Father would find out if she
told the truth. Brittany testified that Father told her not to tell anyone that he
checked her. She testified that she did not ask Father to stop checking her
because she was afraid to make him angry.
14
Brittany testified that Father checked her and Bethany separately and
that she did not remember if Bethany was in the room when she was checked.
Bethany testified that she saw Father check Brittany twice a month.
15
Bethany and Brittany each affirmatively answered questions that their
private area is the part on their body below their belly button and above their
knee.
10
Father denied checking Bethany and Brittany. He testified that he talked to
Bethany about sex when she was nine and that he asked her if she was having
sex when she was eleven and when she was twelve, but he testified that she
denied having sex both times. Bethany testified that she was not having sex.
She also testified that Father wanted to put her on birth control when she was ten
because he was afraid she would get pregnant. Father testified that he asked
Brittany about sex when she was ten and that he asked her when she was
eleven if she was having sex. Brittany testified that she told Father she was not
having sex but that he did not believe her.
Father testified that he had not worked since February 2011 and had not
applied for a job since May 2011. He testified that he worked for the Electra
Police Department from 1994 until 1995 and then worked for the Forest Hill
Police Department from 1995 until 1999.16 He testified that the Forest Hill Police
Department fired him in 1999. On June 4, 1999, the Forest Hill Police
Department placed Father on indefinite suspension for employee misconduct.
The indefinite suspension letter stated that Father had confronted Arlington
police officers on November 14, 1998, attempted to influence them in Mother‘s
16
Father testified that he was an employee with the Electra Police
Department starting in the summer of 1995 after first serving as a volunteer
reserve employee.
11
arrest, and was untruthful to the internal investigating officer concerning the
incident.17 Father denied having done so.
The jury heard other evidence of Father‘s disciplinary history at the Forest
Hill Police Department. When a tow truck driver attempted to repossess Father‘s
vehicle, Father approached the driver and threatened to shoot him. The
Arlington police arrived, and Father displayed his weapon and identified himself
as a Forest Hill police officer. On a separate occasion, an Aaron‘s Rental
employee attempted to repossess Father‘s personal property, and Father
became physical with the employee.18 Father also had five other disciplinary
incidents while working for Forest Hill Police Department.
Father testified that he had not tried to obtain another law enforcement job
and that he was unemployed from 1999 until 2005 because he had problems
with depression, anxiety, and headaches. He testified that he held various other
jobs for a few months at a time but that he quit because they were either too
stressful or not in a management position. Mother testified that Father had quit
two jobs because she and Father believed the jobs were beneath his capabilities.
Father testified that he did not feel well enough to get a job, but that he would
17
Forest Hill Police Department did not seek disciplinary action for this
incident because more than 180 days had elapsed since it occurred. Mother
testified that the Arlington police lied about the incident.
18
Father testified that he did not assault the Aaron‘s Rental employee but
had a disagreement with him. He asked the employee to leave, but when the
employee refused, Father ―exited [his] home and [the employee] was just in the
way of the door.‖
12
have motivation to find a job if he got his children back. Father testified that in
December 2010 he was court-ordered to obtain gainful employment and agreed
that he had not come close to following that order. He testified that he had
known about the trial since January 2012 and that he had not tried to get a job.
He also testified that he had not tried to find a job because he suffered from
major depression.
Father testified that he first went to Helen Farabee (MHMR), the local
mental health center, in April 2001 and was diagnosed with Posttraumatic Stress
Disorder and depression. Father testified that he met with Dr. Decena once
every three months from 2001 until 2004. He testified that he stopped seeing Dr.
Decena in 2004 and did not see another mental health professional until March
2011. He testified that he went back to MHMR in March 2011 and saw Kevin
Thompson once a week until November 2011.19 Father testified that he stopped
seeing Thompson because he had completed the behavior plan Thompson had
created to help him cope with depression. However, Thompson testified that he
stopped seeing Father because the staff felt like Father humored them by going
through the motions.
Father testified that he applied for social security benefits in August 2011
and that he listed major depression as his disability with a disability start date of
March 2011. He testified that his application for social security was denied.
19
Thompson testified that he is a Licensed Professional Counselor and a
Licensed Professional of the Healing Arts.
13
Father also testified that he answered discovery in May 2011 and did not
disclose that he suffered from depression and that he never asked CPS to get
him help for his depression.
Father testified that he was arrested by the Arlington Police Department for
harboring Mother, but he denied that he had harbored her. The Arlington Police
Department‘s Arrest Warrant Affidavit states that on May 29, 1999, Father
shouted at officers to get out of his home and that he aggressively approached
an officer, grabbed his arms, and pushed him backwards. Father denied
grabbing or struggling with the officer.
At the time of trial in March 2012, Mother was in Dawson State Jail serving
a fourteen-month sentence for a probation violation.20 Mother had an extensive
criminal history and testified that she had several charges and convictions for
theft because she ―had a problem . . . [w]anting more than [she] really needed at
the time.‖ She testified that she had served a previous fourteen-month sentence
at Dawson State Jail. Mother could not recall all of her criminal charges and
testified that she did not know how many times she had been charged with theft.
She added that her criminal history did not contain convictions for acts of
violence and that her convictions were mostly for theft. Mother testified that she
wrote 298 bad checks totaling $27,000.
20
Mother‘s initial charge was fraudulent use and possession of identifying
information. Mother‘s probation was revoked because she committed a new theft
by check offense while on probation.
14
Department caseworker Linda Johnson testified that she thought Mother
was going to jail in December 2010 and that she developed Mother‘s service plan
accordingly.21 Johnson testified that Mother complied with most of her service
plan; Mother signed the HIPAA release, participated in available services in jail,
summarized the parenting information sent to her in jail, and underwent a
psychological evaluation. Mother testified that she took a parenting class but
refused to discuss domestic violence because she felt that her parenting trainer
was investigating her and trying to place criminal charges on her and Father.
Mother also testified that there was no domestic violence in her home and that
she would not discuss domestic violence. Johnson testified that the most
important part of Mother‘s service plan was the requirement that she obtain and
maintain safe housing that was free from domestic violence once she was
released from jail.
Mother testified that she told Johnson that she had no intention of leaving
Father. Johnson testified that she previously told Mother that the Department‘s
position was that it would not return the children to her as long as she was living
with Father. Mother testified that the Department indicated to her that it wanted
her to end her marriage to Father and that she made it clear to the Department
that she had no intention of ending her marriage. She then testified that Johnson
never told her that she had to divorce Father but that Johnson had told her that
21
Mother did not go to jail until March 2011.
15
there could come a point when she would have to choose between her husband
and her children, since the Department would have to remove the children from
the family violence. Johnson testified that the only portion of Mother‘s service
plan that she had not complied with was maintaining a home free from domestic
violence. She testified that this noncompliance was enough to determine that
Mother failed to comply with her service plan.
Johnson testified that she developed Father‘s service plan and discussed
the plan with him in December 2010. Johnson testified that Father complied with
parts of his service plan. Father complied with the law, refrained from committing
illegal acts, had not allowed people with a criminal or drug lifestyle in his home,
provided information on people living in his home to CPS for them to run
background checks, completed parenting classes, and completed a
psychological evaluation.22 However, Johnson testified that Father did not notify
her of his change in phone number, did not keep in frequent telephone contact
with her, and did not regularly meet with her. Johnson testified that Father did
not complete a budget form or sign his MHMR release.23 She also testified that
Father failed to obtain and maintain a legal source of income.
Johnson testified that she first heard of Father‘s extensive MHMR issues
during trial. Johnson testified that she met with Father in April 2011 and that he
22
Johnson testified that Father‘s psychological evaluation from the previous
case carried over and counted for the current case.
23
Father testified that he did sign the release.
16
did not mention that he went to MHMR the previous month and did not disclose
his major depressive or posttraumatic stress disorders. She testified that Father
was to attend counseling with Dr. Vandehey and receive intense education in the
effects of domestic violence on the family, but Father did not attend the
sessions.24 She also testified that she first heard that Father saw Kevin
Thompson during trial and that Thompson is not the court-ordered counselor
mentioned in Father‘s service plan.
Father called Robert Campbell and Brian Brunker as character witnesses
at trial. Robert Campbell, a family friend, testified that the children‘s relationship
with their parents appeared normal. Campbell testified that when he spent time
with the family he did not notice anything out of the ordinary and that the children
had never alleged that anything had happened to them while in their parents‘
care. Campbell then admitted that he did not know the children‘s names or ages
or which children were involved in the termination case. Campbell also testified
that he was never around the children without Mother and Father present and
that he had only been to their home around six times in the past twenty years.
Brian Brunker, a Wichita Falls police officer, testified that he lived next door
to the family. Brunker testified that he had seen the children play in the backyard
and that he had never observed anything unusual about their demeanor. He
24
Johnson testified that Father saw A.J. Madden in the previous case and
that Father stated he did not like Madden. Johnson arranged for Father to see
Dr. Vandehey, but when Father did not attend an appointment, Dr. Vandehey
refused to see Father.
17
testified that the children had never approached him and claimed that their
parents abused them and that he had never noticed any marks or cuts on the
children that appeared to be the result of physical abuse. However, Brunker
testified that the only conversations he had with the children were when they had
asked permission to retrieve tennis balls from his backyard. Brunker testified that
he did not know that Mother had written bad checks, that Father was indefinitely
suspended by Forest Hill Police Department, what went on inside Father‘s
household, or the specifics of the SWAT team incident. Brunker also testified
that he did not have a close relationship with Bethany, Brittany, or Brandon and
that he did not know much about Father.
Father testified that his biggest problem in the past was his overwhelming
sense of loss but that he was now positive about the future and believed that his
family was salvageable. Father testified that he felt that he and Mother could
provide for the children emotionally and physically. He also testified that the
children would have to become reaccustomed to the home environment and his
rules.
Father testified that ―there [were] a lot of lies within [Bethany‘s] deposition.‖
He testified that all of the allegations against him were false and that he did not
think this should be a termination case. He also testified that termination was not
proper in a case where the parent routinely looked at female children‘s genitalia,
beat and choked a child, or beat and choked the other parent. He further
18
testified that termination was not proper in a case where a parent routinely
committed criminal behavior and had been sent to prison.
Mother testified that M.R. lived with Father and paid his bills and rent.
Father testified that M.R. was sixty-three, worked full-time, had stomach and lung
cancer, and received chemotherapy treatments every two weeks. Father
testified that M.R. will assist them when Mother is released from jail but that he
had not made arrangements for where M.R. would live. He testified that he did
not have a plan for living arrangements if his children came home with him.
Mother testified that she believed her family was salvageable. She
testified that the way she parented was the correct way for her children and that
the children wanted more freedom and had ―ma[de] everything up.‖ She testified
that Bradley fabricated the allegations of family violence that led to the first
removal. She testified that Bethany and Brittany lied about Father checking them
because they did not like the rules at home. She testified that she did not believe
her daughters and did not believe that Father had ever checked them. Mother
testified that she would deal with Bethany‘s and Brittany‘s allegations that Father
checked them by going to counseling because she believed that Father never
checked the children. Mother also testified that she was surprised that Brandon
discussed violence between her and Father and between Father and Bethany.
Bethany, Brittany, and Brandon testified that they love and miss Mother.
They also testified that they love Father even after everything he had done.
Brittany and Bethany testified that they did not want to live with Father and that
19
they did not feel safe living with him. They testified that they would live with
Mother but that she would just go back to Father or would let them see Father.
Bethany and Brittany testified that they wanted Mother‘s and Father‘s parental
rights terminated. Brandon also testified that he did not want to live with Mother
or Father.
Bethany testified that she felt that Mother began choosing Father over the
children when he moved back in after the 2009 removal. She testified that she
wished Mother would choose her over Father but that she did not think Mother
ever would. Bethany testified that she did not think that Father would ever
change. Bethany testified that she did not want to go home; that she wanted to
be adopted; that she now participates in basketball, track, and volleyball; that she
is happy in her current placement; and that she wants to live there permanently.
She also testified that she understood that there was no guarantee that her
current foster parents would adopt her but that she still wanted Mother‘s and
Father‘s parental rights terminated. Brittany testified that she wants Mother‘s
rights terminated partly because she kept going back to Father. She testified that
she wanted Father‘s rights terminated because he was strict, because he hit
people, and because she is afraid of him at times.
Johnson testified that the children‘s current foster parents want to adopt
them as a sibling unit and that the Department intends for the children‘s current
foster parents to adopt them if the parents‘ rights are terminated. Court-
Appointed Special Advocate (CASA) Gary Cardwell testified that he had
20
observed Bethany, Brittany, and Brandon in their current placement and that they
appeared happy and well-adjusted. Cardwell testified that, in his opinion, it is in
the children‘s best interest for Mother‘s and Father‘s parental rights to be
terminated. Johnson also testified that it is in the children‘s best interest to have
Mother‘s and Father‘s parental rights terminated and that it would impair the
children‘s physical and emotional development if Mother or Father were
appointed as managing conservator.
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 2008); Holick v. Smith,
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., No. 11-0282, 2012 WL 2617604, at *1
(Tex. July 6, 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. Id.;
Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a).
Due process demands this heightened standard because ―[a] parental rights
21
termination proceeding encumbers a value ‗far more precious than any property
right.‘‖ E.R., 2012 WL 2617604, at *1 (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 In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination
and conservatorship). 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 2008).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; 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 D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on
reh‘g).
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). 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
22
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. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder‘s province. Id. 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.
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 subsection (D), (E), or (O) of section 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001; 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.
23
IV. Statutory Endangerment
Father argues in his first and second issues that the evidence is factually
insufficient to support the jury‘s statutory endangerment findings.
A. Applicable Law
―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
well-being of a 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 children‘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).
Additionally, termination under subsection (E) must be based on more than a
single act or omission; the statute requires a voluntary, deliberate, and conscious
24
course of conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam.
Code Ann. § 161.001(1)(E). It is not necessary, however, that the parent‘s
conduct be directed at the children or that the children actually suffer injury.
Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the
children‘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 children to a
life of uncertainty and instability endangers the children‘s physical and emotional
well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998,
pet. denied).
B. Discussion
Father argues that his family violence did not endanger Bethany, Brittany,
and Brandon but that it instead had ―a salutary effect‖ on them. He argues that
there is no evidence that the children suffered any injuries other than transitory
ones and that his discipline had no long-term, adverse effects on the children.
The Department responds that there is ample evidence that Father endangered
the children, and it points to evidence of Father‘s lengthy history of domestic
violence. Specifically, the Department points to evidence that Father assaulted
Mother on an ongoing basis, that the children witnessed the abuse, and that
Father also assaulted the children, and it urges that Father‘s disciplinary
techniques far exceeded the bounds of what society might describe as those
employed by a strict parent.
25
There is also evidence that Father checked Bethany‘s and Brittany‘s
genital areas for evidence of sexual activity. ―It is beyond question that sexual
abuse is conduct that endangers a child‘s physical or emotional well-being.‖ In re
R.G., 61 S.W.3d 661, 667 (Tex. App.—Waco 2001, no pet.), disapproved of on
other grounds by J.F.C., 96 S.W.3d 256 (Tex. 2002); see also R.W., 129 S.W.3d
at 742. Evidence of sexual abuse of one child is sufficient to support a finding of
endangerment with respect to other children. See In re K.M.M., 993 S.W.2d 225,
227 (Tex. App.—Eastland 1999, no pet.). Father argues that his actions did not
cause his daughters physical harm, but he ignores the emotional or
psychological impact of his conduct.
Overall, Father‘s arguments are little more than efforts to minimize the
considerable evidence supporting the jury‘s endangerment findings. While the
evidence is in many respects conflicting given his and Mother‘s denials at trial,
the jury is the sole judge of the credibility of the witnesses and the weight to be
given to their testimony. See J.P.B., 180 S.W.3d at 573; see also In re T.N., 180
S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.) (―[T]he fact finder, as
opposed to the reviewing body, enjoys the right to resolve credibility issues and
conflicts within the evidence. It may freely choose to believe all, part, or none of
the testimony espoused by any particular witness.‖). Contrary to Father‘s
contentions, the jury could have determined that Father endangered Bethany,
Brittany, and Brandon.
26
Applying the appropriate standards of review, we hold that the evidence is
factually sufficient to support the jury‘s findings that Father engaged in conduct or
knowingly placed Bethany, Brittany, and Brandon with persons who had engaged
in conduct that endangered their physical or emotional well-being and that he
knowingly placed or knowingly allowed Bethany, Brittany, and Brandon to remain
in conditions or surroundings that endangered their physical or emotional well-
being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E); see also H.R.M., 209
S.W.3d at 108. We thus overrule Father‘s first and second issues.25
V. Best Interest
Father argues in his third issue that the evidence is factually insufficient to
support the jury‘s finding that termination of his parental rights is in the children‘s
best interest. Mother argues in her sole issue that the evidence is legally and
factually insufficient to support the jury‘s finding that termination of her parental
rights is in the children‘s best interest. See Tex. Fam. Code Ann. § 161.001(2)
(requiring clear and convincing evidence ―that termination is in the best interest of
the child‖).
25
Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination. In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus
need not address the sufficiency of the evidence under section 161.001(1)(O).
See id.; see also Tex. R. App. P. 47.1.
27
A. Applicable Law
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 2008).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(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).
These factors are not exhaustive; some listed factors may be inapplicable to
some cases; other factors not on the list may also be considered when
28
appropriate. 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
presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Discussion
Father contends that his ―hands-on approach to family discipline‖ has not
caused his children any substantial injuries. Father also contends that Bethany
and Brittany have not suffered physically or mentally from the sexual inspections.
Mother points to the strong presumption that keeping children with their parent is
in the children‘s best interest, and she argues that she has always provided her
children with a safe environment. Mother contends that her children have not
suffered any physical harm, that there is no domestic violence in her home, and
that Bethany lies and manipulates others. Mother further contends that while she
does have a criminal history, she used the stolen money to provide for her family.
Exposure to domestic violence is relevant when considering a child‘s best
interest. See In re R.R., Jr., 294 S.W.3d 213, 235 (Tex. App.—Fort Worth 2009,
no pet.); In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.).
A parent‘s extensive criminal record also reflects on the best interest of the
children in maintaining a relationship with that parent. See In re V.V., 349
S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc);
see also In re J.B.W., 99 S.W.3d 218, 229 (Tex. App.—Fort Worth 2003, pet.
29
denied) (holding that incarceration is one factor courts can consider when
determining the best interest of the children in a termination case). Moreover, a
parent‘s noncompliance with a service plan may also affect a factfinder‘s
consideration of the children‘s best interest. M.R., 243 S.W.3d at 821.
The jury heard that Bethany, Brittany, and Brandon love Mother and
Father. But the jury also heard Bethany testify that she wants Mother‘s and
Father‘s parental rights terminated, that she does not want to go home, and that
she wants to be adopted. Brittany testified that she wants Mother‘s and Father‘s
parental rights terminated, and Brandon testified that he does not want to live
with Mother or Father. The jury heard evidence that the children appear happy
and well-adjusted in their current placement, that their current foster parents want
to adopt them, and that the Department intends for the children‘s current foster
parents to adopt them if their parents‘ rights are terminated.
In contrast, the jury heard evidence that Father has choked, punched, and
slapped the children and that he checked Bethany‘s and Brittany‘s genital areas
for evidence of sexual activity. The children do not feel safe living with Father.
Mother has a lengthy criminal history and was serving her second fourteen-
month sentence at the time of trial. Also, Mother has not acknowledged Father‘s
domestic violence or abuse of the children and seems intent upon living with
Father upon her release from jail. Mother and Father denied all allegations
against them and argued that their children were lying.
30
The record contains evidence of Father‘s history of physical and sexual
abuse and his pattern of denial and refusal to adjust his conduct, even when
faced with the possibility of having his parental rights terminated. The record
also reflects Mother‘s history of domestic violence directed at Father, her
unwillingness to comply with her service plan, and her lengthy criminal history.
Applying the appropriate standards of review, we hold that the evidence is
factually sufficient to support the jury‘s finding that termination of Father‘s
parental rights is in Bethany‘s, Brittany‘s, and Brandon‘s best interest. See
H.R.M., 209 S.W.3d at 108 (discussing factual sufficiency standard of review).
We also hold that the evidence is legally and factually sufficient to support the
jury‘s finding that termination of Mother‘s parental rights is in the children‘s best
interest. See id.; see also J.P.B., 180 S.W.3d at 573 (discussing legal sufficiency
standard of review). We therefore overrule Father‘s third issue and Mother‘s sole
issue.
VI. Conclusion
Having overruled Father‘s and Mother‘s respective dispositive issues, we
affirm the trial court‘s judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
DELIVERED: January 4, 2013
31