in the Interest of D.E.B., S.B., J.B., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-15-00442-CV

IN THE INTEREST OF D.E.B., S.B., J.B., CHILDREN

On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 10656-L1, Honorable James W. Anderson, Presiding

May 13, 2016

MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellee, the Texas Department of Family and Protective Services, sought

termination of the parental rights of the mother of D.E.B., S.B., and J.B. 1 After a two-

day bench trial, the associate judge found termination was not in the best interest of the

children. The Department obtained a de novo hearing before the referring court.2

Following the hearing, the referring court ordered termination of the mother’s parental

1
To protect the children’s privacy, we will identify appellant as “the mother,” and
the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX.
R. APP. P. 9.8 (a),(b). The parental rights of the father of S.B. and J.B. were terminated
by a 2006 order.
2
See TEX. FAM. CODE ANN. § 201.015 (West 2015).
rights to S.B. and J.B. but not D.E.B. The mother challenges the sufficiency of evidence

supporting the court’s finding that termination was in the best interest of S.B. and J.B.

We will affirm.

Background

At the time of the May 2014 trial before the associate judge, D.E.B. was age

fifteen, S.B. was twelve, and J.B. almost ten. The children had been in the

Department’s custody since November 2013. But evidence at trial indicated S.B. and

J.B. also were in the Department’s care from September 2005 until August 2008 and

D.E.B., from September 2005 until June 2010.

A Department investigator testified the Department had a history of “many, many,

many cases” involving the mother and her family. During 2006, the mother became

involved with J.B. Hayhurst, who had recently been released from prison. They later

married. In 2012, Hayhurst was convicted of manslaughter and at the time of trial was

serving a ten-year sentence. The mother pled guilty to the offense of tampering with a

witness in Hayhurst’s prosecution. She was sentenced to five years’ deferred

adjudication community supervision.

In 2007, the mother was placed on five years’ deferred adjudication community

supervision for negligently abandoning or endangering a child. The charge was brought

because the mother allowed her former husband, B.B., to return to the home with the

children after he pled guilty to sexually assaulting the mother’s fourteen-year-old cousin.

It was then that B.B. sexually assaulted D.E.B. The mother testified she “was in denial,”

and did not believe D.E.B. when she reported the assault to her. The children were

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removed from the home and B.B. was convicted and imprisoned. According to the

testimony of a psychologist who treated S.B., D.E.B. later blamed S.B. for the family

disarray because D.E.B. was sexually abused by S.B.’s father, B.B.

Another Department worker testified that in 2010 D.E.B. brought a cellphone to

school containing pornographic images of several people, including the mother and J.B.

Hayhurst. D.E.B. was removed from the mother’s care for some six months. In the

worker’s opinion, the mother did not seem to “grasp the inappropriate nature of the

situation.” Later, D.E.B. was improperly touched while staying with a friend. The

mother learned of the occurrence but took no action after D.E.B. asked her to keep it a

secret. She testified that by remaining silent she hoped to gain her daughter’s trust.

During 2012 the Department again was involved with the mother and her children

based on reported inappropriate sexual contact between S.B., then age nine, and her

eleven- and twelve-year-old cousins. According to the Department, the mother did not

take steps to protect S.B. Juvenile authorities became involved with the cousins. The

mother reported to a psychologist that, at about the same time, D.E.B. was hospitalized

for suicidal “comments and gestures.” Later, D.E.B. allegedly “lunged” at the mother

with a knife and juvenile authorities became involved. She was apparently placed on

juvenile probation for aggravated assault.

The mother was jailed in the summer of 2013 under the witness-tampering

charge. The children were left in the care of the mother’s sister, who was the mother of

the cousins involved in the 2012 incident. While the aunt was caring for S.B. and J.B.,

another of her children exposed them to pornography.

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 An August 2013 referral to the Department alleged the mother was leaving the

children alone while she worked. When an investigator spoke with J.B. and S.B. at

school, he observed J.B. smelled, was “very dirty” and wore unclean clothes.

At an early-September visit to the mother’s home, the investigator saw the

residence was clean, but “smelled like animal urine and feces.” The home was owned

by the mother’s father-in-law who allowed her to live there without paying rent. The

mother told the worker she had no one to watch J.B. and S.B. other than thirteen-year-

old D.E.B. At the time D.E.B. remained on juvenile probation. The worker obtained

some financial assistance for the mother and also helped with arranging childcare. A

bed was obtained for J.B. Nevertheless, the mother’s home utilities were disconnected

in October.

In November 2013, the Department received three new intake reports concerning

the mother and the children. The first alleged neglectful supervision of the children, the

second involved J.B.’s behavior at school, and the third concerned possible exposure of

J.B. “to things of a sexual nature.” In an unscheduled home visit, the investigator noted

the residence was unclean with dog feces on the floor and a bad odor. Because there

was no electricity, the home had no heat or means to refrigerate food. At that time the

mother worked a night shift and left the children alone. The mother testified she took

the children to a shelter to avoid the cold. From there, the Department removed the

children.

J.B. was initially placed in a foster home in Lubbock but had to be removed and

placed in a children’s shelter after he “acted out sexually against another child.” D.E.B.

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and S.B. were placed in a foster home in Muleshoe. D.E.B. was moved to a different

facility because of her frequent threats to harm herself.

In January 2014, the mother was referred for counseling. According to this

counselor’s testimony, her record concerning the mother dated back at least to 2010.

The counselor believed the mother was more clinically depressed in 2014 than in the

past. She described the mother as angry and resentful. The mother did not

acknowledge responsibility for the events that led to her children’s removal, and resisted

the counselor’s attempt to create a plan for their future protection because she found no

shortcomings with her parenting. After four or five sessions, the counselor terminated

the mother as a client for failure to make progress and referred her back to the

Department.

The mother was referred to another counselor who conducted twelve sessions

between March and November 2014. She indicated the mother kept their appointments,

but grew angry and defensive when confronted with the reasons the children were in the

Department’s care. In the counselor’s opinion, by November the mother had made

progress in areas such as job stability and her personal appearance. Some

improvement was also noted with her depression. But, the counselor said, the mother

was still not thinking through the consequences of her actions and was not willing to

make changes in her behavior and decision-making. The counselor had “serious

concerns” about the mother’s ability to meet the emotional and physical needs of her

three children. In her opinion, the mother had “the mindset if nobody knows about it, it’s

not wrong. I can do what I want, as long as nobody finds out, and that is almost a core

belief for her . . . .”

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 The court ordered a service plan which, among other things, required the mother

to pay child support and medical support. She failed to comply with this obligation and

admitted at trial that she did not make it the priority she should have. She completed a

required psychological evaluation but did not immediately comply with the treatment

recommended. The mother also was ordered to maintain a safe and stable home. A

Department worker testified multiple home visits beginning in February 2014 revealed

unsanitary conditions including mouse and dog feces, roaches, and a general

uncleanliness. During her case-in-chief, the mother presented a number of recently-

made photographs depicting improved cleanliness in her home.

A psychologist who evaluated the mother in 2007, 2008 and 2014 diagnosed the

mother with a bipolar disorder, primarily of a depressive type. This disorder, he

believed, would interfere with her ability to manage her three children. The psychologist

explained that while improvement might be possible over years the mother did not seem

motivated to obtain treatment and make changes. In his opinion, the mother will “need

a lot of assistance, even in maintaining any kind of relationship with her children, much

less caring for them.” He believed her depression had worsened from 2008 to 2014.

He testified that he could not “imagine a situation in which she would be able to take

care of these three troubled children by herself in the foreseeable future.”

There was evidence J.B. suffered significant emotional disorders, requiring daily

medication. The investigator testified that before J.B.’s removal he found indications the

boy was not receiving his medication. A clinical psychologist testified she diagnosed

J.B. with “other specified bipolar and related disorder with mood congruent psychotic

features of moderate severity,” as well as oppositional defiance disorder. According to

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the psychologist, J.B. required residential treatment for children with serious sexual

disorders. The psychologist believed J.B.’s prognosis would be improved with

residential placement and counseling, but would be hindered if he is unable to remain in

a stable environment.

The evidence showed S.B. was diagnosed with A.D.H.D., also requiring

medication. S.B.’s treating psychologist spoke of the danger to a child like S.B. of her

encounter with sexually inappropriate photographs on her mother’s cellphone. In the

psychologist’s opinion, S.B. needs a structured, stable environment. The home should

have “very clear boundaries about what is appropriate sexually and what is not. [S.B.]

needs to know that she’s also going to be protected from any kind of sexual

overture . . . .” The therapist could not say whether the mother will be able to meet

these needs, but cautioned S.B. must have such an environment if she is to “have a

successful teenage life without becoming a victim of sexual abuse or becoming a really

early promiscuous teen.” During a supervised visit about a month before trial, while

playing with the mother’s cellphone, S.B. viewed sexually inappropriate photographs

stored on the phone by the mother.

The Department planned to transfer the children to the adoption unit if parental

rights were terminated. According to the children’s caseworker, J.B. and S.B. could

potentially remain in their current foster placements “up to adoption.” There was no

evidence of anyone standing by to adopt the children. On the other hand, if the children

were returned from the Department’s care, the mother disclosed some of her plans. The

evidence showed the mother left home for work around 5:00 a.m. each day, and

planned for a neighbor to come into the home to make sure the children got to the

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school bus. For the summer, the mother wanted to enroll the children in an agency day-

care program but admitted the cost for two children would be too expensive. She also

had lined up a relative babysitter but it was shown this person’s son was in the

Department’s care.

By the time of trial, the mother had maintained steady employment for about nine

months, acknowledged to be a positive accomplishment. The Department was not

aware of a time after removal that the mother’s utilities were disconnected. The mother

testified she no longer has delinquent bills and has been able to reduce her debt. She

completed a required parenting course but in the worker’s opinion, based on

subsequent interaction with the children, did not benefit from the instruction.

The mother testified she was not ready to care for all three children but believed

she could handle S.B. In counseling sessions with the family therapist, J.B. vacillated

between wanting to return home and wanting not to go home. Near the time of trial he

seemed to favor going home to see if his stepfather would be released from prison. A

CASA volunteer informed the court that J.B. told her “multiple times” he did not want to

return home. According to the testimony of a treating psychologist, S.B. and the mother

were bonded. The psychologist agreed that throughout the case S.B. consistently

expressed her desire to return home to the mother.

Analysis

The Family Code permits a trial court to terminate parental rights if the

Department proves by clear and convincing evidence that the parent committed an

action prohibited under section 161.001(b)(1) and termination is in the child’s best

8
interest. TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West 2015); Holley v. Adams, 544

S.W.2d 367, 370 (Tex. 1976).

The trial court here found termination was warranted by predicate-ground

findings under Family Code sections 161.001(b)(1)(D), (E), (F), (L) and (O) and a best-

interest finding. On appeal the mother concedes the trial court did not err by its

predicate-ground findings under subsections (D), (E) and (O). She recognizes also that

only one predicate-ground finding, accompanied by a best-interest finding, is necessary

to authorize an order of termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). For

that reason, discussion of the evidence supporting the court’s findings on grounds (L)

and (F) is unnecessary to our disposition of the appeal. TEX. R. APP. P. 47.1.

We turn then to her contention that the evidence was legally and factually

insufficient to support the finding that termination of her parental rights to S.B. and J.B.

was in their best interest.

The Due Process Clause of the United States Constitution and section 161.001

of the Texas Family Code require application of the heightened standard of clear and

convincing evidence in cases involving involuntary termination of parental rights. In re

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

Clear and convincing evidence is that measure or degree of proof which 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); In re C.H., 89

S.W.3d 17, 25-26 (Tex. 2005).

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 In applying the clear and convincing standard under our legal sufficiency

standard, we consider all the evidence in the light most favorable to the court’s finding

to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true. In re E.N.C., 384 S.W.3d at 802 (citing In re J.F.C.,

96 S.W.3d at 266). To give appropriate deference to the factfinder’s conclusions, we

must assume the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so. In re E.N.C., 384 S.W.3d at 802. As a corollary to this

requirement, an appellate court should also disregard all contrary evidence that a

reasonable factfinder could have disbelieved or found to have been incredible. Id. If a

court determines that no reasonable factfinder could form a firm belief or conviction that

the matter that must be proven is true, then the evidence is legally insufficient. Id.

In a factual sufficiency review, a court of appeals must give due consideration to

the evidence the factfinder could reasonably have found to be clear and convincing. In

re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction about the truth of the Department’s

allegations. Id. In doing so we consider whether disputed evidence is such that a

reasonable factfinder could not have resolved the dispute in favor of its finding. Id. If, in

light of the entire record, the evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that it could not reasonably have formed

a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96

S.W.3d at 266.

When assessing the best interest of a child, a court may consider the non-

exhaustive factors announced in Holley, 544 S.W.2d at 371-72. These include: (1) the

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desires of the child, (2) the emotional and physical needs of the child now and in the

future, (3) the emotional and physical danger to the child now and in the future, (4) the

parental abilities of the individuals seeking custody, (5) the programs available to assist

these individuals to promote the best interest of the child, (6) the plans for the child by

these individuals or by the agency seeking custody, (7) the stability of the home or

proposed placement, (8) the acts or omissions of the parent that may indicate that the

existing parent-child relationship is not a proper one, and (9) any excuse for the acts or

omissions of the parent.

The Holley factors are not exhaustive; some listed factors may be inapplicable to

some cases; other factors not on the list may also be considered when appropriate. In

re 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. The evidence supporting the statutory

grounds for termination may also be used to support a finding that the best interest of

the children warrants termination of the parent-child relationship. In re C.H., 89 S.W.3d

at 28. The Holley factors focus on the best interest of the child, not that of the parent.

Patterson v. Brist, 236 S.W.3d 238, 240 (Tex. App.—Houston [1st Dist.] 2006, pet.

dismissed); Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,

86 (Tex. App.—Dallas 1995, no writ).

The law recognizes a strong presumption that the best interest of a child will be

served by preserving the parent-child relationship. Swate v. Swate, 72 S.W.3d 763, 767

(Tex. App.—Waco 2002, pet. denied). But it recognizes also that the prompt and

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permanent placement of the child in a safe environment is presumed to be in the child’s

best interest. TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2015); In re J.F., No. 02-

08-0183-CV, 2009 Tex. App. LEXIS 2130, at *17 (Tex. App.—Fort Worth Mar. 26, 2009,

pet. denied) (mem. op.).

The factfinder may infer that past conduct endangering the well-being of a child

may recur in the future if the child is returned to the parent. In re T.L.S., 170 S.W.3d

164, 166 (Tex. App.—Waco 2005, no pet.); Williams v. Williams, 150 S.W.3d 436, 451

(Tex. App.—Austin 2004, pet. denied); see Ray v. Burns, 832 S.W.2d 431, 435 (Tex.

App.—Waco 1992, no writ) (“Past is often prologue”).

The record depicts the mother’s inability, over a long period of time, to provide for

the physical and emotional needs of her children and to protect them from emotional

and physical danger. As noted, she concedes the court’s finding of the endangering

conduct and conditions to which her children have been subjected under her care. TEX.

FAM. CODE ANN. § 161.001(b)(1)(D), (E). The mother was twice placed on community

supervision and S.B. was exposed to sexual offenders and the mother’s own

irresponsible cellphone pictures. Evaluating the best interest of the younger children,

the court as well could have taken into account the sexual assault D.E.B. endured when

her mother brought B.B. back into their home. The evidence of endangering conduct

and conditions strongly supports the trial court’s best interest finding.

The mother also concedes the correctness of the trial court’s finding termination

was warranted under subsection (O) of section 161.001(b)(1), which required clear and

convincing evidence the mother failed to comply with the provisions of a court order that

12
specifically established the actions necessary for her to obtain the return of S.B. and

J.B. after their removal for abuse or neglect. TEX. FAM. CODE ANN. § 161.001(b)(1)(O).

The finding is pertinent also to the best interest determination. The mother’s failure to

complete successfully the service plan ordered in the current proceeding comes at the

conclusion of her substantial history with the Department, during which she

demonstrated an inability or unwillingness to accept the benefit of counseling and

related assistance provided her. As one counselor told the court, the mother’s conduct

reflected a philosophy holding, “I can do what I want, as long as nobody finds out.” The

record demonstrates the detrimental impact of such an attitude on her children.

The mother’s plans for S.B. and J.B. support the court’s best interest finding.

She has a history of leaving the younger children in the care of D.E.B. The mother’s

determination to maintain employment is commendable, but even after those efforts she

acknowledges she currently can care only for S.B. But S.B., her psychologist testified,

needs a stable and structured environment with clear boundaries. Even with the recent

improvements in her finances and employment, the court had reason to doubt the

mother’s ability to provide that kind of environment for S.B. And, in her plan, J.B.’s

permanent placement must await further improvement in the mother’s parenting

capabilities, while he remains in foster care.

There is evidence that S.B. and perhaps J.B. want to return to the mother’s

home. While the desires of the children is a proper factor in the best interest analysis,

nothing in this record suggests it should be the controlling factor here. See In re

W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.) (“The child’s love

of his parents cannot compensate for the lack of an opportunity to grow up in a normal

13
and safe way equipped to live a normal, productive, and satisfying life”). The court was

not required to consider that the best interest of S.B. and J.B. would be served by

leaving one or both children in the uncertainty of foster care while the mother and the

children attempt to work through the emotional and medical issues shown by this

record.

After viewing all of the evidence in the light most favorable to the best interest

finding, we conclude the evidence was sufficiently clear and convincing that a

reasonable fact finder could have formed a firm belief or conviction that termination of

the parent-child relationship between the mother and S.B. and J.B. was in the children’s

best interest. We further conclude that, viewed in light of the entire record, any contrary

or disputed evidence could have been reconciled in favor of the trial court’s best interest

finding or was not so significant as to prevent the trial court from forming a firm belief or

conviction that termination was in their best interest. Thus, the evidence was legally

and factually sufficient to support the best interest finding. We overrule the mother’s

issue contending otherwise.

Conclusion

Having resolved against the mother the only issue necessary to our disposition of

the appeal, we affirm the order of the trial court.

James T. Campbell
Justice

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