TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00364-CV
T. A. W. and C. E., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-005653, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants T.A.W. (Mother) and C.E. (Father) appeal from the trial court’s final
order, signed after a bench trial, terminating their parental rights to their children.1 The children
involved in this proceeding are “Charles,” who was nine when the order was signed; “Mark,”
who was seven; and “Clare,” who was five. As statutory grounds for termination, the trial court
found that both Mother and Father had knowingly placed or allowed the children to remain in
conditions that endangered their well-being, engaged in conduct or knowingly placed the
children with someone who engaged in conduct that endangered the children’s well-being, and
failed to comply with the requirements of a court order that established the actions necessary to
regain custody. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O).
1
For the sake of the children’s privacy and for clarity, we refer to the parents as
“Mother” and “Father” and to the children and other involved individuals by pseudonyms. See
Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Both parents filed notices of appeal. Mother’s attorney filed a brief challenging
the legal sufficiency of the evidence supporting the trial court’s findings of each of the statutory
grounds and the factual sufficiency of the evidence supporting the trial court’s best interest
finding. Father’s attorney filed a brief challenging the legal and factual sufficiency of the
evidence supporting the trial court’s finding of the (O) ground and the legal and factual
sufficiency of the evidence supporting the trial court’s best interest finding. Father’s attorney
also complained of the conduct of the trial court proceedings, specifically the trial court’s
questioning of some witnesses. We will affirm the trial court’s order.
STANDARD OF REVIEW
To terminate a parent’s rights to his or her child, the Department must prove
by clear and convincing evidence that the parent engaged in conduct that amounts to at least
one statutory ground for termination pursuant to section 161.001 and that termination is in the
child’s best interest. Id. § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear
and convincing evidence is “the measure or degree of proof that will produce in the mind of
the trier of fact a firm conviction or belief as to the truth of the allegations sought to be
established.” Tex. Fam. Code § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In our
review, we must “provide due deference to the decisions of the factfinder, who, having full
opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the
credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re
J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In evaluating the legal sufficiency of the evidence, we
look at “all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”
2
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see A.C. v. Texas Dep’t of Fam. & Protective Servs.,
577 S.W.3d 689, 697 (Tex. App.—Austin 2019, pet. denied). We “assume that the factfinder
resolved disputed facts in favor of its finding if a reasonable factfinder could do so” and
“disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible,” J.F.C., 96 S.W.3d at 266, but we need not disregard undisputed evidence contrary
to the determination, K.M.L., 443 S.W.3d at 113. Evidence is legally sufficient unless after
reviewing the evidence in the proper light, including undisputed evidence that does not support
the findings, we conclude that no reasonable factfinder could have formed a firm belief or
conviction that the Department carried its evidentiary burden. J.F.C., 96 S.W.3d at 266; A.C.,
577 S.W.3d at 697.
Factual sufficiency requires “weighing disputed evidence contrary to the finding
against all the evidence favoring the finding.” In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). “In
a factual sufficiency review, the appellate court must consider whether disputed evidence is such
that a reasonable factfinder could not have resolved it in favor of the finding.” Id. “Evidence is
factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder
could not have credited in favor of the finding is so significant that the factfinder could not have
formed a firm belief or conviction that the finding was true.” Id.
STATUTORY GROUNDS
The trial court may order termination of the parent-child relationship under
subsection (D) if clear and convincing evidence establishes that the parent “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child,” Tex. Fam. Code § 161.001(b)(1)(D), and under
3
subsection (E) if the evidence establishes that the parent “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child,” id. § 161.001(b)(1)(E). Both subsections require proof
of endangerment, which means exposing a child to loss or injury, or jeopardizing a child’s
emotional or physical well-being. See Texas Dep’t of Fam. & Protective Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987); A.C., 577 S.W.3d at 698-99. A finding of endangerment
requires more than the threat of metaphysical injury or ill effects from a less-than-ideal family
environment, but the Department does not have to prove that the conduct was directed at the
child or that the child suffered an actual injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012);
A.C., 577 S.W.3d at 699. “Endangerment does not need to be established as an independent
proposition but may be inferred from parental misconduct.” A.C., 577 S.W.3d at 699. Evidence
of domestic violence is relevant to endangerment, even if the violence is not directed at the child.
J.G. v. Texas Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019,
no pet.); In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
Subsection (D) focuses on the child’s environment—which includes the child’s
living conditions and the environment produced by the conduct of the parents or others in the
home—and whether the environment itself endangered the child, while subsection (E) focuses on
the parent’s conduct and whether the parent engaged in a voluntary, deliberate, and conscious
course of conduct that endangered the child. V.P. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem.
op.). Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home—
including physical violence or abusive conduct by one parent toward the other parent—is part of
the environment under subsection (D). Id. Subsection (D) primarily concerns the environment
4
as it existed when the child was removed, In re J.R., 171 S.W.3d 558, 569 (Tex. App.—Houston
[14th Dist.] 2005, no pet.); Ybarra v. Texas Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex.
App.—Corpus Christi 1993, no writ), while the relevant time period for subsection (E) is wider
and considers parental conduct occurring “both before and after the child has been removed
by the Department.” Pruitt v. Texas Dep’t of Fam. & Protective Servs., No. 03-10-00089-CV,
2010 WL 5463861, at *4 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.).
In September 2018, the Texas Department of Family and Protective Services filed
its original petition seeking conservatorship of the children with a removal affidavit in which
Department investigator Erica Greene averred that in May 2018, it received a referral alleging
neglectful supervision. That referral arose after the police were called to respond to a domestic
disturbance between Mother and Father. It was reported that Father had left the scene and that
Mother’s blood was on the floor. Although Mother stated that the blood originated from a
nosebleed caused by stress, it was reported that there was more blood than would be expected
from a nosebleed and that Mother had previously stated that Father jumped on her back while
she was lying on her stomach, pulled her up by her shoulders, and tried to take her cell phone.
Mother stated that after Father took the cell phone he threw it across the room. The incident
occurred with the children present and reportedly awake and huddled together on the couch.
Green averred that the Department learned of another reported incident of violence between
Father and Mother in the children’s presence wherein Mother threw a cup of noodles at Father
and Father responded by throwing a rock at Mother’s car while she and the children were in it.
Mother and Father agreed to a safety plan that prohibited Mother and Father from
being together with the children and established that Father would have visits with the children
5
supervised by his mother, W.E. (Grandmother). After determining that the safety plan had been
violated, the Department filed its petition seeking sole managing conservatorship.
Mother’s challenge to statutory grounds
In attacking the trial court’s findings of statutory grounds under subsections (D)
and (E), Mother states that the Department did not give her adequate help with obtaining the
services and classes recommended by the Department that she was ordered to take to obtain
the return of the children. Mother states that “[t]o the extent that all services are intended to
ameliorate the effects of the original removal grounds, termination on the (D) ground is
unconscionable where the parent had difficulty doing services.” Assuming the accuracy of
Mother’s claim that the Department’s help with obtaining services was inadequate, that has no
bearing on whether the children were in an environment that endangered them when they were
removed. See J.R., 171 S.W.3d at 569. Mother also argues that “the incidents of domestic
violence between the parents seem like property destruction, more than domestic violence,” and,
consequently, that “termination under (D) is not appropriate.” However, both Greene and Kelsey
Schatte, a counselor at the children’s school, testified that the children had reported seeing Father
hit Mother, causing her nose to bleed. Moreover, testimony about that incident of domestic
violence between Father and Mother was not the only evidence presented at trial indicating
that Mother knowingly placed or allowed the children to remain in conditions or surroundings
that endangered their physical or emotional well-being. Ericka Brothers, a psychologist who
evaluated Mark, testified that Mark reported that his parents spanked him with belts all over his
body, which hurt and left marks and bruises on him. Mark stated that Mother’s boyfriend also
spanks him. Further, Mark told Brothers that he was removed from his parents’ care because
6
they needed help due to their fighting, and that he had witnessed his parents fighting and arguing
both physically and verbally, which scared him. Brothers testified that exposure to trauma at
home can increase the risk of a child developing a wide variety of psychopathy and creates a
higher risk of developing depression, anxiety, difficulty managing anger, and defiant behaviors.
Brothers also testified that living in an unstable environment and not feeling safe in the home
puts children “on alert” and uses “emotional and cognitive resources” that should be directed
toward other elements of child development. The children’s great aunt J.W. (Great Aunt)
testified that when the children came to live with her in September 2018, they all had to undergo
extensive dental work including having several teeth removed. All three children had herniated
navels that had to be surgically corrected, and there was testimony that not having the surgery
done earlier caused the procedure to be more dangerous. Great Aunt stated that when they
arrived at her house Charles would steal food from school and bring it home and that she had to
reassure him that they would not run out of food. Charles would also bang his head on the wall,
slap himself, and call himself names, and Mark was anxious, cried easily, and was not able to be
alone. Clare’s psychologist testified that Clare made remarks about wanting to kill herself, and
her school counselor reported that Clare engaged in violent and aggressive behavior when she
first began attending school. The witnesses testified that this behavior moderated and improved
over time. The court heard extensive testimony about Mother’s mental health issues, including
Brothers’ testimony that she diagnosed Mother with persistent depressive disorder with
psychotic features and borderline personality disorder with schizotypal features. Mother testified
that she experiences rage and blackouts when she gets angry and that when she gets upset she
gets hostile and “just explodes.”
7
We conclude that there was legally sufficient evidence presented at trial to
support a subsection (D) finding of endangerment. Evidence of a parent’s mental instability or
of domestic violence in the home can support a finding of endangerment, see e.g., In re A.C.,
No. 10-15-00192-CV, 2015 WL 6437843, at *7 (Tex. App.—Waco Oct. 22, 2015, no pet.)
(mem. op.); In re K.P., No. 09-13-00404-CV, 2014 WL 4105067, at *14 (Tex. App.—Beaumont
Aug. 21, 2014, no pet.) (mem. op.), and this record contains evidence of both. The court heard
evidence of neglect of necessary medical and dental care, at least one child being concerned
about not having enough food, and all three children exhibiting behaviors consistent with
exposure to unstable and traumatic conditions when in Mother’s care. We overrule Mother’s
legal sufficiency challenge to the trial court’s finding under subsection (D).
Because we uphold the trial court’s finding under subsection (D), we need not
consider Mother’s issues related to the other statutory grounds found by the court. See Spurck v.
Texas Dep’t of Fam. & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).
Father’s challenge to statutory grounds
Only one ground under Section 161.001(b)(1) is necessary to support a judgment
in a parental rights’ termination case—even if the trial court based the termination on more than
one ground—so long as there is also a finding that termination is in the child’s best interest.
In re N.G., 577 S.W.3d 230, 232 (Tex. 2019); Spurck, 396 S.W.3d at 221. On appeal, Father
challenges the trial court’s finding under subsection (O) but does not challenge the other grounds
for termination that are included in the trial court’s judgment—subsections (D) and (E).
Therefore, Father has waived any challenge he may have to those findings. See Toliver v. Texas
Dep’t of Fam. & Protective Servs., 217 S.W.3d 85, 103 (Tex. App.—Houston [1st Dist.] 2006,
8
no pet.) (“Holloway does not challenge the sufficiency of the evidence supporting the findings
under section 161.001(b)(F), (N), and (O), and thus he waives any complaint about the
sufficiency of the evidence to support these findings). The trial court’s unchallenged findings
that Father committed conduct satisfying subsections (D) and (E) are sufficient to support the
court’s termination order provided this Court upholds the trial court’s best interest finding.
Because, as set forth below, we overrule Father’s challenges to the best interest finding, we
overrule Father’s challenge to the trial court’s order based on a complaint about the sufficiency
of the evidence supporting one of the three statutory grounds supporting the termination order.
BEST INTEREST
Both Father and Mother challenge the legal and factual sufficiency of the
evidence supporting the trial court’s findings that termination of each of their parental rights was
in the children’s best interest. We review these challenges by considering the factors set out in
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Under Holley, we take into account the
children’s wishes, their emotional and physical needs now and in the future, present and future
emotional or physical danger posed to the children, the parenting skills of those seeking custody,
any programs available to assist those seeking custody to promote the children’s best interest,
plans for the children’s future, the stability of the home or proposed placement, conduct by the
parent that might show that the parent-child relationship is inappropriate, and any excuses for the
parent’s conduct. Id. The Holley factors are not exhaustive, not all factors must be proved, and
a lack of evidence about some of the factors does not “preclude a factfinder from reasonably
forming a strong conviction or belief that termination is in the child’s best interest, particularly if
the evidence were undisputed that the parental relationship endangered the safety of the child.”
9
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The children’s need for permanence is the paramount
consideration when determining their present and future physical and emotional needs. L.R. v.
Texas Dep’t of Fam. & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1 (Tex.
App.—Austin June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 53 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). A parent’s rights may not be terminated merely
because the children might be better off living elsewhere, but the factfinder may consider
whether termination and adoption versus an impermanent foster-care arrangement would better
serve the children’s best interest. See L.R., 2018 WL 3059959, at *1.
Sabrina Tuggle, the children’s CASA volunteer, and Carol Wall and Cursten Roe,
their Department caseworkers, testified that it was in the children’s best interest for the parents’
rights to be terminated and for the Department to pursue the possibility that the children be
adopted by T.A. and R.J., a couple who are friends of Great Aunt, have met the children, and are
becoming licensed to adopt. Tuggle testified that Mother has shown little progress since the
Department became involved and that she has not taken responsibility for failing to complete the
court-ordered services. Tuggle expressed concern about Mother’s behavior, including aggressive
and explosive outbursts, and that Mother was arrested in March 2020 for aggravated assault.
Tuggle testified that she is also concerned that Mother is unwilling to share information with the
Department about her current romantic partner and because of continued police involvement
caused by Mother’s behavior. Tuggle expressed concerns about Father, including his recent
drug use, and his inability to provide the safety and stability the children need. Tuggle noted that
Father himself testified that he is not ready to raise his children and that his plan for them to live
with Grandmother was unsatisfactory because of the condition of her house. Tuggle testified
that Great Aunt had decided she could not be a long-term placement for the children and that,
10
because of that decision, Tuggle had visited T.A. and R.J.’s home in February 2020. Under
the circumstances, Tuggle testified that it was in the children’s best interest that the parents’
rights be terminated and the Department pursue adoptive placement for the children, ideally
with T.A. and R.J.
Wall testified that at the beginning of her involvement in the case in September
2018, she had concerns about the children’s emotional and behavioral issues. Charles engaged in
self-harming behaviors such as hitting his head on the wall and hitting and threatening other
children. Clare was defiant and Mark was very emotional and cried easily. Wall stated that all
three children exhibited signs of food insecurity. The children also required extensive dental and
medical care. Wall originally worked toward family reunification and attempted to assist Mother
and Father to engage in services that would address the ongoing domestic violence and substance
abuse as well as Mother’s mental health issues and the children’s behavioral needs. Although
Mother reported that she stopped using marijuana in October 2018, Wall expressed concern that
Mother was continuing to use marijuana to self-medicate for anxiety. Father reported that he
used marijuana daily and that he occasionally used methamphetamine, which he did not consider
to be a problem. Wall stated that Father and Mother attended most of the scheduled visits
with the children and that the parents and the children seemed happy to see each other. Wall
expressed concern, however, that Mother treated Clare like a peer and would get aggressive and
raise her voice. Toward the summer of 2019, the parents’ visits became sporadic and Father
declined to visit the children unless Mother was also there. Tuggle testified that although Mother
had participated in some therapy sessions, she had failed to consistently attend sessions and
continued to display erratic behavior and outbursts and to minimize the Department’s concerns
and the children’s behavior. Wall testified that she did not consider placement with Grandmother
11
to be in the children’s best interest because of the condition of the home and because one of the
home’s occupants had a criminal history and another occupant was a registered sex offender.
Wall testified that the Department was seeking termination of parental rights because Father and
Mother failed to: show progress in the past two years, be transparent with the Department, and
demonstrate an ability to provide a stable environment for the children, who were in need of
significant therapeutic interventions to address their emotional and psychological needs.
Roe testified that it was in the children’s best interest for Father’s and Mother’s
parental rights to be terminated so that the Department could proceed with the prospective
adoption by T.A. and R.J. Roe stated that Great Aunt was unable to serve as a long-term
placement and that Grandmother was not a suitable placement for the children because
Grandmother’s house was cluttered with dangerous items and there were multiple people living
in the house and in a shed in the back yard. When Roe visited Grandmother’s home, she
observed a box of condoms and an open pack of cigarettes, along with clothing, in one of the
bedrooms, indicating that someone was living in that bedroom. Roe observed that Grandmother,
who was 75 years old, struggled to get around, and although Grandmother and the children have
a close relationship, Roe was concerned about Grandmother’s ability to handle three very active
children who did not listen to her. Roe testified that the Department considered other relatives as
placements but a stepmother and a sister refused to do a home study and a cousin was
not considered as a placement because she was a working mother with three children under the
age of six. Roe testified that she had seen Mother have multiple outbursts, including in the
courthouse, and had witnessed Mother yelling at attorneys and calling them names. Roe
expressed concern that Mother had not completed anger management courses and was
not addressing her mental health issues. Mother also refused to provide information to the
12
Department about her current romantic partner. Roe stated that Mother cannot provide the
children with the structure, patience, and support they need; is defensive when given advice
about the children’s therapeutic needs; and is triggered by descriptions of their concerning
behaviors. Roe testified that Father is calm around the children and has been respectful of the
Department but has also been candid about his inability to currently care for the children and has
asked that they be placed with Grandmother. Roe testified that in the six months before trial, the
children’s behavior has improved in response to structure, therapy, and medications. Roe
testified that she had discussed the children’s needs and behavioral issues with T.A. to ensure
that T.A. is aware of the severity of some of the behavioral problems and that T.A. has been in
regular contact with the children over the past few months.
Brothers testified that she evaluated Father in 2019 and that he did not engage
well, was reluctant to share, and declined to discuss his past arrests because he believed they
were not relevant. Father told Brothers that the Department became involved with the family
because of arguments between Mother and Father but denied any domestic violence. Brothers
gave Father a provisional diagnosis of antisocial personality disorder based on his spotty
employment history, his lack of empathy and consideration of other people’s feelings, and his
failure to follow through on his obligations to others. Brothers noted that Father had recurrent
arrests as an adult for drug dealing, which he did not deny, and that there were recurrent
allegations of domestic violence between Father and Mother. Brothers testified that antisocial
personality disorder can interfere with a person’s ability to be consistently involved in the
children’s lives and creates a risk of abusive behavior toward the children.
Brothers also evaluated Mother who, although guarded at first, eventually opened
up to Brothers in a meaningful way. Mother testified that she had a history of chronic depression
13
and difficulty managing feelings of anger. Mother reported recurrent abusive relationships
and problems in school. Brothers diagnosed Mother with persistent depressive disorder with
psychotic features and borderline personality disorder with schizotypal features. Mother was
forthcoming about domestic violence between her and Father, stating that he “beat” her on
more than one occasion. Mother described periods when she blacked out because of anger and
reported that she heard voices when she was particularly depressed and that the voices “put
her down” and “sapped her of her motivation and self-esteem.” Mother stated that none of her
mental health issues affected her parenting and that her children are the only thing in her life that
makes her feel better. Brothers testified that she recommended that Mother reestablish consistent
psychiatric care and re-commence taking prescribed medications to get her mood swings and
psychotic symptoms under control. Although Mother was sincere in acknowledging she needs
treatment, Brothers was concerned that Mother was adamant that her symptoms disappeared
when she was with her children. Brothers stated that she was skeptical that a person reporting
Mother’s symptoms could be a calm and stable parent at all times. Brothers was doubtful that a
person could compartmentalize that level of psychopathology and shield the children from it.
Brothers testified that Mother was likely exaggerating the degree to which she was able to keep
her mental health issues from affecting her ability to parent the children.
Mother testified that she completed a Nurturing Parent Class in April 2019 in
which she learned that stability is important for children and learned techniques for disciplining
them. She learned the importance of routine in the household and not lashing out at the children.
After completing the class, Mother was arrested for assault, the case was still pending at the time
of trial, and Mother stated that the charges against her are false. Mother testified that she was
unsuccessfully discharged from therapy because she did not have transportation to get to her
14
sessions and does not recall being assigned a mobile therapist. She testified that she was unable
to complete a Batterers Intervention and Prevention Program due to numerous court dates and
her belief that she could substitute that program for one ordered as a condition of her probation.
Mother stated that she takes medication for her mental health issues and that when she is not
taking her medication, she feels more depressed. Mother testified that she has experienced rage
and blacks out when she fights but does not let her children see her get angry; that she did not
recall stating that she heard voices; that she did not have a problem with anger; and that she plans
to address her mental health issues as she has in the past by staying away from people, isolating
herself, and getting therapy. Mother testified that she lives in an apartment with enough room
for all three children, that she wants them home with her, and that she has lived in the apartment
for three months, having moved there to get away from people and be isolated. Mother stated
that if the children were returned to her care she would find a job working from home and would
stay home with the children. Mother testified that she does not want to lose her parental rights
and that if the children are not returned to her she would want them to live with Grandmother.
Mother testified that she realizes she needs to change her behavior to have her
children returned to her care and stated that she is willing to work on that. Mother testified
that she has been antagonistic to the Department because she believes that their goal from the
beginning was to terminate her parental rights. Mother acknowledged that the progress she
believes she has made sometimes gets lost in her frustration over the situation. Mother testified
that she has calmed down and learned to control her emotions but admitted that she was arrested
in February 2020 for aggravated assault with a firearm. Mother denied calling the police in
May 2020 to report that her boyfriend was abusive and testified that her boyfriend does not
live with her.
15
Father testified that he believes he has made progress toward becoming a better
parent but that he is not yet ready to care for the children. Father stated that he last saw the
children in February or March of 2020 and that he had difficulty communicating with the
children because of Great Aunt’s schedule and because he did not have Facetime on his cell
phone. Father testified that Grandmother has Facetime sessions with the children, but that he
does not. Father stated that he went months without seeing the children because although he
tried to see them “nobody else put any effort into it.” Father completed a Nurturing Parent Class
and participated in therapy but stopped going to sessions because he disagreed with the
therapist’s assessment that his upbringing caused him to start using drugs. Father stated that he
became frustrated with the therapist because he knows his substance abuse issues have nothing to
do with his upbringing but with choices he has made. Father stated that he did not complete a
Batterers Intervention and Prevention Program because he did not understand that he was
being asked to do so. Father stated that while the Department has been involved with his family
he has used marijuana, methamphetamine, and cocaine. Father acknowledged that he last used
methamphetamine in March 2020, cocaine in January 2020, and marijuana two weeks before
trial. Father agreed that he cannot safely parent his children while using drugs.
Father expressed his desire that the children be placed with Grandmother while he
participated in programs addressing his substance abuse issues. He testified that the other people
who were living there moved out in March 2020. Father stated that although Grandmother has
arthritis in her knees she gets around fine and can take care of the children with his help. Father
testified that his brother could also help Grandmother and that although Father understands
that the children are challenging, they listen to Grandmother and she would be able to ensure
that they continued therapy sessions. Father’s plan for the children is for them to live at
16
Grandmother’s house where he and Charles would share a room, Mark would have his own
room, and Clare would share a room with Grandmother. Grandmother’s boyfriend would sleep
on the couch.
Great Aunt testified that the children have made significant progress controlling
their behaviors since coming to live with her and that they are improving at school both
academically and behaviorally. They are attending therapy regularly and are doing well in
structured home with rules. The children are participating in online activities, Charles has
stopped hitting himself, Mark is less anxious, and Clare is more focused. Great Aunt stated that
the children have expressed a strong desire to continue to live with her. However, she does not
believe she would be able to take care of the children long term because of her commitment
to her own children and she testified that although it was a difficult decision to make, she had
to be honest about her abilities. Great Aunt expressed concern with the children living with
Grandmother because of her age and her health.
The Department’s plan is to work toward adoption by T.A. and her husband, R.J.
T.A. testified that she is a first-grade teacher and that R.J. is an engineer. She stated that she
loves children and that they naturally gravitate toward her. She and R.J. have been married for
twelve years and, although R.J. has always been a law-abiding citizen, he recently experienced
the loss of his mother, was laid off from his job, and was arrested for driving while intoxicated,
his first offense. T.A. stated that R.J.’s attorney believes the charges will be dismissed but that
the case has stalled because of COVID-19. T.A. testified about her experience with special needs
children and her commitment to addressing their needs with patience and love. She has worked
with physically violent children in a transitional living facility and as a youth care worker at the
Austin Children’s Shelter.
17
We consider this best-interest evidence in light of the Holley factors. First, the
children have expressed a desire to continue to live with Great Aunt rather than return to Mother
or Father. Although the children are strongly bonded to Grandmother, there was no evidence of
their desire to live at her house full time. The witnesses consistently testified that the children
need to continue therapy and to live in a safe and structured home environment to meet their
emotional and physical needs. Father acknowledged that he lacked the parenting skills necessary
to have the children returned to him and evidence showed that Mother has serious mental health
issues, which she acknowledges but does not believe impact her ability to parent the children.
The Department testified that it would work toward placing the children with T.A. and R.J. once
they have been licensed to adopt the children. T.A. testified about her experience with children
and her desire to provide these children a safe and structured home and to continue with the
therapies they need to address their emotional well-being. The evidence regarding the children’s
present and future needs weighs in favor of termination. We hold similarly as to the present and
future danger posed to the children: the children had been exposed to significant trauma when
they were removed; they had significant dental and medical needs that had been unmet; and
exhibited aggressive and threatening behavior toward each other and other children. Father’s
plans for the children are that they live with him in Grandmother’s home, a home that was found
inadequate by the Department because of its condition and other occupants. Mother’s plan was
to have the children live in her apartment and for her to find a job working from home where she
could address her mental health issues by being with her children and isolated from others. The
Department witnesses expressed concerns about Mother’s ability to parent given her mental
health issues and because they had no information about Mother’s boyfriend. The evidence
related to the competing plans for the children’s future also weighs in favor of termination.
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Both Mother and Father completed parenting classes, but neither completed
therapy or a Batterers Intervention and Prevention Program. Father admits that his substance abuse
is inconsistent with parenting the children. Mother failed to acknowledge that her mental health
issues have a negative impact on her ability to parent and, although she has expressed a desire to
continue therapy and medication to manage her symptoms, her health care providers expressed
concern about her minimization of the severity of her issues and their impact on her parenting
skills. The evidence related to parenting skills on balance weighs in favor of termination.
Having considered the evidence related to best interest, deferring to the trial
court’s determinations on witness credibility, the resolution of conflicts in the evidence, and the
weight to be given the testimony, see A.B., 437 S.W.3d at 503, we hold that the Holley factors
weigh in favor of the trial court’s finding that termination is in the children’s best interest.
We conclude that the evidence, viewed in the appropriate light, is both legally and factually
sufficient to support the trial court’s finding that termination of Father’s and Mother’s parental
rights was in the children’s best interest. We overrule Father’s and Mother’s challenges to the
best-interest findings.
Courtroom Procedures
In his appeal, Father challenges the conduct of the trial court during the bench
trial, specifically complaining that the court abused its discretion by making comments during
the proceedings and by examining witnesses. Father contends that the trial court’s conduct
assisted the Department and deprived him of a fair and impartial tribunal.
Father acknowledges in his brief that no party objected to the court’s questions.
“As a prerequisite to presenting a complaint for appellate review, the record must show that:
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(1) the complaint was made to the trial court by a timely [] request, objection, or motion . . . and”
(2) the trial court ruled or refused to rule on the objection and the complaining party objected to
the refusal. Tex. R. App. P. 33.1(a). There is no exception to this rule when the complaint is
about how the trial judge conducted the trial. Sklar v. Sklar, 598 S.W.3d 810, 825 (Tex. App.—
Houston [14th Dist.] 2020, no pet.) (addressing need to preserve complaint that trial court abused
its discretion by questioning witnesses and by advocating for one party). However, even if,
as Father maintains, there is no need to object when the trial court’s questioning goes beyond
seeking clarification of witness testimony and constitutes advocacy, we conclude that the trial
court did not abuse its discretion in questioning the witnesses and commenting that the court
would like to hear evidence about the Department’s plans for securing an adoptive placement.
The discretion vested in the trial court over the conduct of a trial is great and
includes putting competent and material questions to a witness. Born v. Virginia City Dance
Hall & Saloon, 857 S.W.2d 951, 957 (Tex. App.—Houston [14th Dist.] 1993, writ denied).
In a bench trial, the judge may question witnesses to clarify facts on an issue that the
judge must decide in fulfilling the role as a factfinder. See e.g., Bhamani v. Citizens Enters.,
No. 11-13-00041-CV, 2015 WL 1779055, at *8 (Tex. App.—Eastland Apr. 6, 2015, no pet.)
(mem. op.). We review the trial court’s questioning of a witness for an abuse of discretion. Id.
The trial court’s role in questioning witnesses is particularly important during a
bench trial when the best interest of children is at stake. See Trahan v. Trahan, 732 S.W.2d 113,
114-15 (Tex. App.—Beaumont 1987, no writ). In Trahan the court observed that when the best
interest of children is involved, “[t]he court should have all the facts possible in order to make
an intelligent decision,” and “[i]f the attorneys fail to develop the facts, it is the trial judge’s
responsibility to the children to attempt to do so himself.” Id. On appeal, Father complains
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about the court’s questions to the Department supervisor about whether the Department ignored
court orders and failed to provide a parenting coach for Great Aunt; the court’s questions to
the Department caseworker about the caseworker’s efforts to secure effective therapy for the
children, its efforts to provide transportation for Father to obtain a substance abuse evaluation,
and how the children had improved throughout the case; the court’s question regarding the
likelihood of the Department securing an adoptive placement for all three children together; the
court’s questions to T.A. about her familiarity with the children and her husband’s DWI arrest;
and the court’s questions to Great Aunt about how the children’s behavior and health had
changed since they came into the Department’s care. The questions reveal that the trial court
was attempting to elicit information it needed to resolve the case and did not evince bias or
prejudice but instead were appropriately connected with the trial court’s task of determining
what would be in the children’s best interest. The questions do not reveal any bias against Father
or in favor of the Department; to the contrary the trial court’s inquiries were principally directed
at determining whether the Department had conducted itself in a manner that would comport
with its stated intent in this case to facilitate family reunification.
Father also complains about the following colloquy between the trial court and
counsel for the Department:
The Court: So who [else] from the Department [will testify]?
Counsel: Just Cursten Roe is the only person remaining.
The Court: You don’t—you don’t think I might need to hear from somebody
about adoptions?
Counsel: Possibly.
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The Court: Well, we’re going to find out later whether Miss Wall knows
anything about adoptions. And maybe Miss Roe as well. But my
experience has been that CPS caseworkers take the stand and tell
me that they don’t know anything about adoptions, and so then
I’m left without any good idea about what the Department plan
actually is in reality. And I would like to hear a little bit about
that, if possible.
Father characterizes this comment as the trial court “practically order[ing] the District Attorney
to secure a witness to address the Court’s concerns about the children’s adoptability, and then
question[ing] that person.” Father argues that without the trial court’s direction, the Department
would not have put on evidence addressing its plan for adoption. The record reveals, however,
that Roe testified that the Department’s plan was for T.A. and R.J. to adopt the children once
licensed and that Great Aunt would keep the children until they were adopted by T.A. or another
family. Tuggle also testified that T.A. and R.J. were being considered for adoptive placement and
were nearing the end of the licensing period to become adoptive parents. To the extent Father’s
complaint is that the Department called Casey Jordan, a Department adoption supervisor, to
testify, Jordan testified that R.J.’s DWI had to be resolved before the family could be licensed for
adoption and that, if R.J. was convicted, the family would have to undergo a risk evaluation.
Jordan also testified about the supportive services that would be available to an adoptive
placement and agreed that finding an adoptive placement for a sibling group in need of at least a
moderate level of care and with a history of physical aggression would be challenging. Jordan
also acknowledged that the Department currently has children waiting for an adoptive placement.
The testimony clarified that a conviction for DWI would not necessarily bar approval of T.A.
and R.J. as adoptive placements, which may have favored the Department’s case, but it also
highlighted the possibility that the Department would be unable to secure a suitable adoptive
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home for the three children together. Father did not object to this testimony at trial. We conclude
that Father has failed to demonstrate that this testimony harmed him or caused the trial court to
err in finding that termination was in the children’s best interest. See Tex. R. App. P. 44.1(a)
(requiring for reversal in civil case that error probably caused rendition of improper judgment).
The trial court did not abuse its discretion in questioning the witnesses or by suggesting that the
Department present testimony regarding the children’s prospects for adoption. The Department’s
presentation of Jordan’s testimony, even if it resulted from an improper request by the trial court,
did not harm or prejudice Father or evidence any bias or partiality of the trial court. We overrule
Father’s issue challenging the manner that the trial court conducted the proceedings.
CONCLUSION
For the reasons stated in this opinion, we affirm the trial court’s final order of
termination.
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Kelly, and Smith
Affirmed
Filed: January 8, 2021
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