J. B., Jr. and Y. R. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISRICT, AT AUSTIN

NO. 03-19-00881-CV

J. B., Jr. and Y. R., Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-17-003746, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION

Following a bench trial, the trial court rendered judgment terminating Y.R.’s

and J.B., Jr.’s parental rights to their children, J.B. and J.A.B.1 The trial court found that Y.R.

(Mother) and J.B., Jr. (Father) each knowingly placed or knowingly allowed the children to

remain in conditions or surroundings that endangered their physical or emotional well-being and

that they each engaged in conduct or knowingly placed the children with persons who engaged

in conduct that endangered their physical or emotional well-being. See Tex. Fam. Code

§ 161.001(b)(1)(D), (E). The court also found that Father failed to comply with a court order

establishing actions necessary for him to obtain the return of the children, who had been in the

permanent or temporary managing conservatorship of the Department of Family and Protective

Services for not less than nine months as a result of their removal from their parents under

Chapter 262 for abuse or neglect. See id. § 161.001(b)(1)(O). The court found that termination

1
We use aliases to refer to the minors and to their adult relatives to protect the minors’
confidentiality. See Tex. R. App. P. 9.8(a), (b).
of both Mother’s and Father’s parental rights was in the children’s best interest. See id.

§ 161.001(b)(2). Mother and Father both appealed the trial court’s order terminating their

respective parental rights. Mother challenged the legal and factual sufficiency of the evidence

supporting the finding that termination of her parental rights was in the children’s best interest.

Father challenged the legal sufficiency of the evidence supporting the (D), (E), and (O) findings

and the factual sufficiency of the evidence supporting the finding that termination of his parental

rights was in the children’s best interest. We will affirm.

BACKGROUND

In October 2016, the Department received a report that Mother had been found

passed out in a car in a hotel parking lot leaving four-year-old J.B. and one-year-old J.A.B.

playing in the parking lot unsupervised. The Department received a second report the next day

that Mother had been passed out in the hotel elevator and that J.B. and J.A.B. had been left

alone. By the time the Department received the reports, Mother was incarcerated, and the

children were with Father and his mother, Tammy. When the Department contacted Father, he

was uncooperative and verbally aggressive and told the Department to communicate with

Tammy rather than with him. The Department contacted Tammy, who told them that Mother

had been released from jail and had, over her objection, taken the children. The Department

determined that Mother had taken the children to south Texas to stay with her mother for a brief

time and then returned to Austin. The Department advised Mother not to let the children be with

Tammy because of her history of neglectful supervision and her criminal history.

In November 2016, Father was arrested for delivery of a controlled substance.

Mother informed the Department that she and the children had been with her mother in south

Texas but had returned to Austin. In December 2016, Mother was arrested for theft at a
2
shopping mall in Austin. Mother informed the Department that she had been incarcerated for

three to four days but had been released on house arrest and that she was staying in Austin with a

female friend. In January 2017, Mother was arrested on a warrant for a charge of child

endangerment related to the October 2016 incidents of neglect at the hotel.2 A law enforcement

officer informed the Department that the children would be placed with Father. After she was

released later that month, Mother contacted the Department to find out what she needed to

do to complete the Department’s investigation. At the Department’s request, Mother agreed to

participate in Family Based Safety Services (FBSS), an out-of-court program through which the

Department attempts to provide in-home services to a family. The Department hoped the program

could address Mother’s drug use and unstable housing situation and Father’s drug use as well as

provide parenting and other services.

The FBSS program lasted from February to March 2017 during which time

Mother and the children were living with a friend and Father was living with Tammy. The

children were not to be around either their maternal or paternal grandmothers because of their

histories with the Department. The Department met with Mother and the children monthly.

During that time, J.B. made an outcry that his mother kicked him and hit him. Mother denied

that and stated that J.B. “was a liar.” Mother started a nurturing parenting program but was

discharged because of irregular attendance. In April, the Department learned that Father had

been arrested for possession of methamphetamine. When the Department attempted to visit

Mother and the children in May, it learned that Mother was incarcerated because she tested

positive for cocaine in a drug test administered as part of her pending criminal case. The children

2
Mother’s counsel suggested at trial that the warrant was for traffic violations rather
than for child endangerment, but it was undisputed that Mother was arrested and taken into
police custody.
3
were with their maternal grandmother and aunt in south Texas. Mother told the Department

that she did not send the children to stay with Father because he would not cooperate with

the Department and because he used marijuana. In June 2017, Father and Mother were both

incarcerated and the Department placed the children with their maternal aunt in south Texas.

Having determined that the FBSS program was proving unsuccessful, the

Department filed an original petition seeking temporary managing conservatorship of the

children and to terminate Mother’s and Father’s parental rights to J.B. and J.A.B. in the event

reunification efforts failed. J.B. and J.A.B. remained with their maternal aunt until August 2017

when she informed the Department that she could not care for them due to health issues. The

children were placed with a foster parent in Austin. That placement was unsuccessful because

of J.B.’s behavioral issues, and the children were moved to another foster home in Austin

in December 2017. By February 2018, Mother was engaging in recommended services. She

complied with some, but not all, requested drug testing. Father was incarcerated and had not

participated in recommended services. J.B. and J.A.B. both had psychological evaluations and

were diagnosed with Post Traumatic Stress Disorder (PTSD). J.B. was behind in his reading skills,

but with his foster parents’ help and after school tutoring, he had caught up. The individual

therapy sessions focused on working through J.B.’s and J.A.B.’s trauma. The children both had

extensive dental needs and underwent a few surgeries and got fillings to correct problems with

their teeth.

During the spring of 2018, Mother was doing well in parenting class and had

participated in individual therapy. The Department agreed to extend the June 2018 deadline for

the case because of Mother’s progress. In May 2018, the parties entered into a Mediated

Settlement Agreement for further temporary orders. Mother was to continue to engage in the

4
family service plan and follow the recommendations of the psychological evaluation. She was

also required to take regular drug tests and was informed that skipping a test would result in a

presumed positive result. Father did not attend the mediation, but his attorney was present.

Father was to provide all certificates of completion or other proof of services completed while

incarcerated and was ordered to notify the Department and provide his contact information

within forty-eight hours of his release.

In July 2018, Mother was arrested, her probation was revoked, and she was

incarcerated until the following October. Father was incarcerated for most of the year. After

Mother was released, she lived with various people while working on the recommended services.

The case went to trial in December 2018, but the Department requested a recess because

Mother and Father had been released so recently from jail that the Department wanted to give

them a chance to engage in more services and reestablish their relationships with J.B. and J.A.B.

Mother and Father were to refrain from criminal activity and drug use. Father was to refrain

from buying or selling drugs or associating with individuals who promoted criminal behavior.

In December 2018, the Department placed J.B. and J.A.B. with the Davidsons,

who were Father’s relatives. Mother was having weekly supervised visits with the children.

When Father was released from jail, he also had supervised visits. The children continued to

have behavioral issues, particularly after visits with their parents, and were engaged in weekly

therapy. Father neither completed the recommended services nor refrained from criminal activity.

Father had a positive drug test in November 2018 and failed to undergo a drug and alcohol

evaluation. Mother, however, continued to make progress with the recommended services and

was working and doing well. Meanwhile, the Davidsons had informed the Department they

could no longer care for J.B. and J.A.B., so the Department placed them with the Smith family,

5
who were identified as J.B.’s and J.A.B.’s fictive kin. Mother was also living with the Smiths.

In May 2019, the parties entered into another Mediated Settlement Agreement in which the

Department agreed to a plan to return the children to Mother. Mother was to have supervised

visits progressing to unsupervised and overnight visits with the goal of the children returning to

live with Mother and the Smiths in July 2019. In June 2019, Mother tested positive for cocaine.

Because the Smiths were unwilling to move Mother from their home and because the children

could not stay in a home with a person who had a positive drug test, the Department placed the

children with a foster family in Lometa, Texas.

The case was tried to the bench in a three-day proceeding. The court heard

testimony regarding the circumstances surrounding the children’s removal from their parents and

the events driving the Department’s decision to seek termination of Mother’s and Father’s parental

rights. The court also questioned the witnesses. At the conclusion of the trial, the court found

several predicate grounds for terminating Mother’s and Father’s parental rights to their children

and that termination was in the children’s best interest. The court rendered judgment terminating

Mother’s and Father’s parental rights to J.B. and J.A.B. This appeal followed.

DISCUSSION

Father’s Challenge to Predicate Grounds for Termination

The trial court found that Father knowingly placed or allowed J.B. and J.A.B.

to remain in conditions that endangered their physical and emotional well-being and engaged

in conduct or knowingly placed J.B. and J.A.B. with persons who engaged in conduct that

endangered their physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(D), (E).

The trial court also found that Father failed to comply with a court order establishing actions

necessary for reunification. Id. § 161.001(b)(1)(O). On appeal, Father challenges the legal
6
sufficiency of the evidence supporting these findings as well as the factual sufficiency of the

evidence supporting the court’s finding that termination of his parental rights was in the

children’s best interest.

In an appeal from the termination of parental rights, legal and factual sufficiency

challenges require a heightened standard of review. In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In reviewing the legal sufficiency, we view

all the evidence in the light most favorable to the finding to determine whether a trier of fact

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

allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); In re J.F.C., 96 S.W.3d at 265-66.

We do not, however, disregard undisputed evidence that does not support the finding. In re J.F.C.,

96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence, we must give due

consideration to evidence that the factfinder could reasonably have found to be clear and

convincing. Id. We must consider the disputed evidence and determine whether a reasonable

factfinder could have resolved that evidence in favor of the finding. Id. If the disputed evidence

is so significant that a factfinder could not reasonably have formed a firm belief or conviction,

the evidence is factually insufficient. Id.

We first consider Father’s legal sufficiency challenge to the court’s endangerment

findings. In his brief, Father asserts only that because he was not able to complete the

recommended services due to his incarceration, he “could not have negated the (D) grounds that

brought the children into care, by doing services” and, likewise, “could not have negated the (E)

grounds, by doing services.” Father does not contend that there was no evidence at trial to support

a finding that he engaged in conduct that endangered the children but, rather, maintains that his

inability to participate in the recommended services prevented him from negating the trial court’s

7
endangerment findings. Father’s participation in services, however, is unrelated to whether he

engaged in conduct constituting child endangerment; i.e. conduct that exposed the children to

loss or injury or jeopardized their emotional or physical well-being. Assuming, however, that

Father has adequately challenged it, we will review the evidence presented at trial to determine

whether it was legally sufficient to support the trial court’s endangerment finding.

Both subsections (D) and (E) require proof of child endangerment, that is,

“exposing a child to loss or injury or jeopardizing a child’s emotional or physical well-being.”

A.C. v. Texas Dep’t of Family & Protective Servs., 577 S.W.3d 689, 699 (Tex. App.—Austin

2019, pet. denied) (citing Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987)). “Endangerment does not need to be established as an independent proposition but may

be inferred from parental misconduct.” Id. “Although ‘“endanger” means more than a threat of

metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is

not necessary that the conduct be directed at the child or that the child actually suffers injury.’”

In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Boyd, 727 S.W.2d at 533).

Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of

the child’s physical or emotional well-being was the result of the parent’s conduct, including acts

and omissions or failures to act. A.C., 577 S.W.3d at 699. “Termination under this subsection

must be based on more than a single act or omission; instead, ‘what is required is a voluntary,

deliberate, and conscious course of conduct.’” In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.—

Houston [1st Dist.] 2019, no pet.) (quoting Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied)).

“A parent’s conduct that subjects a child to a life of uncertainty and instability

endangers the child’s physical and emotional well-being.” Id. Thus, “evidence of criminal

8
conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a

course of conduct that endangered the well-being of the child.” Id. at 360-61. “A factfinder may

also infer that a parent’s lack of contact with the child and absence from the child’s life

endangers the child’s emotional well-being.” In re M.D.M., 579 S.W.3d at 765 (citing In re

R.A.G., 545 S.W.3d 645, 652 (Tex. App.—El Paso 2017, no pet.)); see In re U.P., 105 S.W.3d 222,

236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (concluding that parent’s criminal

conduct, which resulted in parent’s imprisonment and absence from child’s life, created

“emotional vacuum” in child’s life that endangered child’s well-being).

On this record, we conclude that the evidence is legally sufficient to support the

trial court’s finding under subsection (E) that Father engaged in conduct that endangered the

children. Evidence showed that Father was incarcerated for most of J.A.B.’s life and a

considerable part of J.B.’s life; that Father repeatedly engaged in illegal conduct including use,

possession, and delivery of controlled substances such as Promethazine and methamphetamine;

that Father’s serial incarcerations caused him to be absent for much of the children’s lives; that

even during the times Father was not incarcerated he was inconsistent in visiting J.B. and J.A.B.;

and that Father allowed J.B. and J.A.B. to stay with Tammy despite the Department’s order that

they not be with her because of her extensive criminal and Department history. The children’s

therapist Robin Beauregard testified that both J.B. and J.A.B. suffered from PTSD as a result of

trauma experienced in their lives related to the instability of their living conditions. The trial court

could reasonably have determined that Father’s repeated criminal activity and incarcerations

contributed to this trauma. Father himself testified that he understood that his involvement with

drugs endangers the children’s stability and security and that the loss of security and stability can

cause emotional or psychological harm.

9
 Viewing the evidence in the light most favorable to the trial court’s finding, we

conclude that a reasonable factfinder could form “a firm belief or conviction” that Father

engaged in conduct that endangered J.B.’s and J.A.B.’s physical or emotional well-being. See

Tex. Fam. Code § 161.001(b)(1)(E). Furthermore, there was no significant disputed evidence

that would render such finding unreasonable. See In re J.F.C., 96 S.W.3d at 266. Because we

have concluded that the evidence was sufficient to support the trial court’s finding under

subsection (E), we need not address Father’s challenges to the trial court’s other predicate

findings under subsection (D) or (O). See In re N.G., 577 S.W.3d 230, 235, 239 (Tex. 2019) (per

curiam) (requiring appellate courts reviewing termination findings that are based on subsection

(D) or (E) to ensure that evidence is sufficient to support at least one of those two grounds

because finding under either could be used in future proceedings to terminate parent’s rights to

other children); A.C., 577 S.W.3d at 698-99 & n.2 (noting that when appellant challenges both

subsection (D) and (E) findings, appellate court needs to ensure that evidence is sufficient to

support one of those grounds); see also Tex. Fam. Code § 161.001(b)(1)(M) (“The court may order

termination of the parent-child relationship if the court finds by clear and convincing evidence

that the parent has had his or her parent-child relationship terminated with respect to another

child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E).”).

Mother’s and Father’s Challenge to Best Interest Finding

Mother asserts that the evidence is legally and factually insufficient to support

the trial court’s finding that termination of her parental rights is in the children’s best interest,

and Father asserts a factual sufficiency challenge to this finding. The best-interest prong of

the termination statute “is child-centered and focuses on the child’s well-being, safety, and

development.” In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). When deciding the best-interest
10
issue, we consider the well-established Holley v. Adams factors, which include the child’s

wishes, the child’s emotional and physical needs now and in the future, emotional or physical

danger to the child now and in the future, the parenting abilities of the parties seeking custody,

programs available to help those parties, plans for the child by the parties seeking custody,

the stability of the proposed placement, the parent’s conduct indicating that the parent-child

relationship is improper, and any excuses for the parent’s conduct. See 544 S.W.2d 367, 371-72

(Tex. 1976); see also In re A.C., 560 S.W.3d at 631; In re E.N.C., 384 S.W.3d 796, 807 (Tex.

2012); In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The Department need not prove all the Holley

factors as a “condition precedent” to termination, and the absence of evidence of some factors

does not bar the factfinder from finding by clear and convincing evidence that termination of

parental rights is in a child’s best interest. In re C.H., 89 S.W.3d at 27; Spurck v. Texas Dep’t of

Family & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).

The children’s wishes

The children’s therapist, Robin Beauregard, testified that J.B. and J.A.B. both

love Mother and would choose to live with her. She stated that neither of the children mentions

Father very often at all. Beauregard testified that the children enjoy their visits with Mother if

they are supervised and are excited to describe what happened during the visits. Beauregard

testified that J.B. and J.A.B. have also expressed that they want to stay in their foster placement

and continue to visit with Mother on a regular basis. Beauregard stated that the children expressed

that if Mother made certain changes, they would “want to go back to live with her if they knew it

would be that certain way.” Beauregard stated that it is not unusual for children from abusive

situations to express a desire to be with a parent even if the parent was neglectful and abusive.

Danielle Hensen, the CASA volunteer assigned to the case, testified that the children love their
11
mother but “struggle with the bond.” Henson stated that J.B. tends to keep some distance from

Mother during visits.

The children’s current and future emotional and physical needs

The testimony regarding J.B.’s and J.A.B.’s physical and emotional needs

principally focused on the need for stability so they could continue to process the trauma they

had experienced and learn methods to cope with their behavioral issues. One of the reasons

several placements failed was that J.B. demonstrated aggressive behavior and severe “melt downs”

accompanied by screaming and hitting his mother and J.A.B. Department case supervisor

Melissa Fabian testified that both J.B. and J.A.B. suffer from PTSD and that when J.B. and

J.A.B. were able to remain in one placement with routine and clear expectations, they were

able to work through their trauma and behavioral problems. She expressed concern about the

possibility that future placements could fail and the toll that would take on J.B. and J.A.B.

Fabian testified that the children have been through a lot and that continuing to move from place

to place would be detrimental to their well-being. Fabian stated that the instability, abuse, and

neglect the children had experienced have compounded to the point where both children will

need long term support and therapy that she did not believe either Mother or Father could

provide. In her view, the stability that terminating Mother’s and Father’s parental rights would

provide would be in the children’s best interest.

Beauregard testified that J.B. wanted his therapy sessions with her to focus on

how to deal with unsettling memories of living with Mother and how to develop appropriate

coping skills. Beauregard stated that J.B. needed to learn that the mistakes Mother and Father

made were not his fault or his responsibility. Beauregard emphasized the importance of routine

and structure to children with PTSD, as well as the importance of redirection to address
12
aggression and outbursts. Beauregard testified that J.B. had assumed a caretaker role of J.A.B.

and needs to learn to let that go and understand that the foster parents will take care of J.A.B.

Beauregard also stated that J.B. and J.A.B. need to be allowed to “be kids” and to be involved in

sports. With regard to J.A.B., Beauregard testified that he needed stability to process memories

that bother him and to learn to play without being overly physical.

Hansen, the CASA caseworker, testified that J.B. and J.A.B. need parents who

understand that their behaviors are the result of trauma they have experienced and who know

how to address those behaviors in a way that makes the children feel safe and protected. Hansen

opined that it would be best for the children to be the only children in the home because they

need a lot of focus and attention paid to them. Hansen also stressed the need for the children to

be in a stable living environment. Mallory Ladny, a Department caseworker assigned to the case

in March 2019, also testified that J.B. and J.A.B. need a permanent home after having been

moved so many times.

Emotional and physical danger to the children now and in the future

No evidence was presented that J.B. and J.A.B. were currently in any physical

danger or that, if they were returned to their parents, they would be in the future. Ample and

consistent testimony was presented that Mother and Father act appropriately with the children

and that Mother in particular is very loving and caring during visits. Additionally, the children’s

therapist, caseworker, and CASA volunteer all testified that the children are safe and doing well

in their current foster placement. Beauregard testified that the current foster placement is stable

and has helped J.B. improve his behaviors. In that placement J.B. is healing and developing

better coping skills. Beauregard stated that J.A.B. feels safe where he is and has been working

on overcoming trouble sleeping and bed wetting. The structure and routine of the current foster
13
family has also helped J.A.B. succeed at school. Hansen testified that, after a transition period,

J.B. and J.A.B. are doing well in their current foster placement. She stated that the foster parents

are warm and clear and concrete about what is required of the children and that they joke and

play with them.

The main concern expressed by the Department’s witnesses at trial was the

potential for future emotional harm to the children if they continue to be exposed to unstable

home environments and do not have the structure and routine that is currently helping them to

process the trauma they have experienced. Fabian testified that Mother’s history of relapsing

into drug use creates the potential for more emotional harm to J.B. and J.A.B. in the future. She

also expressed concern that if the children were placed in a foster home without sufficient

resources the placement could be unsuccessful and the children would have to be moved again,

which would be more detrimental than having them remain in the current successful foster

placement in Lometa. Fabian testified that the risk of further disruptions in the children’s lives

would be harmful to their emotional health.

Placement proposed by parents

Neither Mother nor Father asked that the court return J.B. and J.A.B. to their care.

Both asked that their parental rights not be terminated and that J.B. and J.A.B. live with Sandra,

Father’s second cousin. Sandra was identified as a potential relative placement in the month or

so preceding trial. Sandra, who is twelve years older than Father, testified that she raised him as

a child and that she had contact with J.B. and J.A.B. when they were babies. Sandra testified that

she was not aware of the circumstances of the case and did not know Mother well at all, but that

she wanted to do whatever she could to help Father and ensure that J.B. and J.A.B. were placed

with a relative. Father testified that he understood that if J.B. and J.A.B. were placed with a
14
relative, the children would risk exposure to members of the family who would negatively

influence him and the children. Father stated that he would address this by spending time with

those family members “on his own” rather than at family gatherings. Father testified that he

wants J.B. and J.A.B. to be with his family and that he would “avoid the conflict.” Mother

testified that she does not know Sandra but would prefer that the children be with family rather

than non-family.

The Department completed a home study for Sandra and, although the placement

was conditionally approved, Department witnesses testified about concerns they had that would

need to be addressed before they could recommend that the children be placed in Sandra’s home.

Fabian testified that Sandra would need a lot of support to meet the children’s needs. Fabian

noted that Sandra has four children of her own living with her and would need financial

assistance to adequately care for J.B. and J.A.B. Fabian testified that adoption by Sandra would

be the only way that such financial assistance would be available. Hansen expressed concern

because Sandra had told her that her plan was to have her seventeen-year-old daughter take care

of her younger two children while she focused on J.B. and J.A.B. Hansen testified that she was

concerned about this arrangement. Sandra also told Hansen that her daughter planned to enter

the military within the next year. Hansen echoed the concern about Sandra’s financial ability to

care for six children as well as concern that one of Sandra’s older children was on probation for

criminal activity.

The Department’s witnesses testified that while they would continue to consider

Sandra as a placement if their concerns could be alleviated, they would still recommend

terminating Mother’s and Father’s parental rights so that Sandra could receive necessary

financial assistance and so that if the placement was unsuitable, the Department could act

15
quickly to find an alternative for J.B. and J.A.B. During her testimony Sandra acknowledged

that adopting the children would be the best alternative for her because of the availability of

financial assistance. Sandra also stated that she understood the Department’s position that

termination of parental rights made sense so that if placement with her did not work out, the

Department could act quickly to place the children elsewhere.

Ladny summarized the reasons the Department believed termination of Mother’s

and Father’s parental rights to be in the children’s best interest. She testified that the Department

had heard from other relatives that they would be willing to adopt the children if parental

rights were terminated but would not be a placement for the children otherwise. Thus, termination

of parental rights would open up more options for a relative placement. Ladny testified that

adoption also opens up possibilities for financial assistance for J.B. and J.A.B. that they would

not otherwise have. Ladny stated that not terminating Mother’s and Father’s parental rights

limits the Department’s options and ties its hands in terms of its ability to further explore

placements that would be best for J.B. and J.A.B. Hansen testified that, while not seeing Mother

and Father in the future would be harmful for them, J.B. and J.A.B. would suffer more trauma if

they continued to have a relationship with Mother. Hansen testified that this opinion was based

on the fact that Mother, despite having participated in all the recommended services, continues to

engage in the same choices that traumatized the children and brought them into the Department’s

care. Hansen testified that her recommendation was to terminate Mother’s and Father’s parental

rights, have the children remain in their current foster placement, and explore whether adoption

by a relative or by the foster parents was the better option.

The common theme to the Department’s witnesses was that three years of

working to reunify Mother with J.B. and J.A.B. had failed because each time reunification

16
was imminent, Mother relapsed into drug use. Mother’s therapist, Curtis Laurence, testified that

although Mother has periods of sobriety, she struggles with periods of relapse. Laurence

expressed concern about whether Mother can maintain the positive changes she has made and

whether she can maintain sobriety. Laurence expressed no concern about Mother’s parenting

abilities but testified that, although she had worked hard, it would be difficult for Mother to

change behaviors such as drug use and criminal activity that are harmful to her and to her

children. Fabian testified that she believed the Department’s efforts at reunification had ultimately

made the children’s situation worse because it had exposed them to a longer period of instability.

Viewing the evidence in the light most favorable to the trial court’s finding, we

conclude that a reasonable factfinder could form “a firm belief or conviction” that termination of

Mother’s and Father’s parental rights was in J.B.’s and J.A.B.’s best interest. After considering

the disputed evidence, we conclude that a reasonable factfinder could have resolved that

evidence in favor of the finding and that it is not so significant that a reasonable factfinder could

not have formed a firm conviction or belief that termination of Mother’s and Father’s parental

rights was in J.B.’s and J.A.B.’s best interest. After consideration of the Holley factors and the

evidence presented to the court, we conclude that the evidence is legally and factually sufficient

to support the court’s finding that the best interest of the children will be served by terminating

Mother’s and Father’s parental rights.

CONCLUSION

For the reasons stated in this opinion, we overrule Mother’s issue challenging

the trial court’s finding that termination of her parental rights is in J.B.’s and J.A.B.’s best

interest. We also overrule Father’s issues challenging the court’s finding that he engaged in

conduct that endangered J.B.’s and J.A.B.’s physical or emotional well-being and that termination
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of his parental rights is in the children’s best interest. Consequently, we affirm the trial court’s

order of termination.

__________________________________________
Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed

Filed: May 6, 2020

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