Opinion filed January 11, 2024
In The
Eleventh Court of Appeals
__________
No. 11-23-00202-CV
__________
IN THE INTEREST OF A.D., I.D., AND A.D., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 9820-CX
MEMORANDUM OPINION
This is an accelerated appeal from an order in which the trial court terminated
the parental rights of the father, Appellant,1 to his three children, A.D.1.,2 I.D., and
A.D.2. On appeal, Appellant presents three issues in which he challenges the legal
1
The trial court also terminated the parental rights of the children’s mother. No appeal has been
filed on behalf of the mother.
2
The oldest and youngest children have the same initials. We will refer to the oldest child as A.D.1.,
and the youngest child as A.D.2.
and factual sufficiency of the evidence to support the trial court’s findings. We
affirm the trial court’s order of termination.
Procedural Background, Termination Findings, and Standards
In 2019, the Department of Family and Protective Services (the Department)
filed a suit affecting the parent-child relationship (SAPCR) in which it sought
termination of the parental rights of Appellant and the mother to their three children,
ages four, three, and one at the time. In 2021, the trial court entered a final order in
which it appointed the Department and the mother as joint managing conservators
and Appellant as possessory conservator with limited rights and denied all other
relief. In April of 2023, the Department filed a petition to modify the 2021 order.
In the petition to modify, the Department alleged termination grounds pursuant to
Sections 161.001(b) and 161.004 of the Texas Family Code. See TEX. FAM. CODE
ANN. § 161.001(b) (West Supp. 2023), § 161.004 (West 2022). 3
In July of 2023, the trial court conducted a hearing on the petition to modify
and signed the order at issue in this appeal that terminated Appellant’s and the
mother’s parental rights. The trial court found, pursuant to Section 161.004, that the
circumstances of the children, parent, or other party affected by the order denying
termination had materially and substantially changed since the date that the order
was rendered. See FAM. § 161.004(a)(2). The trial court also found by clear and
convincing evidence that Appellant committed at least one of the acts listed in
Section 161.001(b)(1)—specifically, that Appellant: (1) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
3
Section 161.004 sets out the requirements for termination of “the parent-child
relationship after rendition of an order that previously denied termination of the parent-child
relationship.” FAM. § 161.004(a). Section 161.004 has been regarded as a mechanism through which the
Department may, upon proving a material change in the circumstances of an affected party, defeat a parent’s
claim of res judicata when the Department seeks termination after a prior petition seeking termination was
denied. In re K.G., 350 S.W.3d 338, 349 (Tex. App.—Fort Worth 2011, pet. denied).
2
endangered the physical or emotional well-being of the children; (2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct
which endangered the physical or emotional well-being of the children; and
(3) failed to support the children in accordance with his ability during a period of
one year ending within six months of the date of the filing of the petition. See id.
§ 161.001(b)(1)(D), (E), (F). Finally, the trial court found by clear and convincing
evidence that termination of Appellant’s parental rights is in the best interest of the
children. See id. § 161.001(b)(2).
Appellant challenges the legal and factual sufficiency of the evidence to
support the trial court’s findings under subsections (D), (E), and (F) and its finding
that termination was in the children’s best interest. The termination of parental rights
must be supported by clear and convincing evidence. FAM. § 161.001(b). To
terminate parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(U),4 and
that termination is in the best interest of the child. Id. § 161.001(b)(2).
In reviewing a legal sufficiency challenge, we must decide whether “a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). “Bearing in mind the
required appellate deference to the factfinder, we look at all the evidence in the light
most favorable to the finding, assume the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so, and disregard all evidence that a
4
We note that the legislature recently amended Section 161.001 to include additional requirements
for trial courts in termination suits filed by the Department of Family and Protective Services and a new
ground for termination that relates to convictions for solicitation of a minor; however, these amendments
only apply to suits filed on or after September 1, 2023. Act of May 26, 2023, 88th Leg., R.S., ch. 728, §§ 1,
3, 2023 Tex. Sess. Law Serv. 1770, 2177 (codified at FAM. § 161.001(b)(1)(V)); Act of May 29, 2023, 88th
Leg., R.S., ch. 675, §§ 1, 8, 2023 Tex. Sess. Law. Serv. 1646–47 (codified at FAM. § 161.001(f), (g)). The
original petition to terminate the parent-child relationship in this case was filed prior to September 1, 2023.
We therefore apply the law in effect on the date the suit was filed.
3
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
(internal quotation marks omitted). “However, we may not disregard undisputed
facts that do not support the finding,” and the factfinder is the sole arbiter of the
witnesses’ credibility and demeanor. Id. (quoting In re J.F.-G., 627 S.W.3d 304,
312 (Tex. 2021)) (internal quotation marks omitted).
In assessing whether the evidence is factually sufficient, we weigh 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). Giving due deference to the finding, we
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations against the parent. In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—
Eastland 2023, pet. denied).
With respect to the best interest of a child, no unique set of factors need be
proved. L.C.C., 667 S.W.3d at 513. But courts may use the non-exhaustive Holley
factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). These include, but are not limited to: (1) the 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 the
existing parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent. Id. Additionally, evidence that proves one or more
statutory grounds for termination may constitute evidence illustrating that
4
termination is in the child’s best interest. In re C.J.O., 325 S.W.3d 261, 266 (Tex.
App.—Eastland 2010, pet. denied).
Evidence Presented at Trial
At the bench trial on the Department’s petition to modify the 2021 order, the
Department called eight witnesses, including the children’s foster parents, Rachal
Rodarte and Teresa McElvaney. The children’s therapists, two Department
employees, Appellant, and the mother also testified.
The record reflects that the Department’s involvement in the underlying case
began in April of 2019 after a police officer found the children playing unsupervised
in the middle of the street around 8:00 a.m., in soiled diapers and without clothes or
shoes. A.D.1. was four years old, I.D. was three, and A.D.2. was one year old at the
time. When the officer took the children back home, no one answered the door, so
law enforcement made entry and found Appellant and the mother asleep. A.D.1.
would later describe this incident to Rodarte as his attempt to run away. He
explained that he intended to find “his Nana to get help,” and I.D. and A.D.2.
followed him.
During a home visit in October of 2019, Appellant and his girlfriend appeared
under the influence of an unknown substance, and there was cat feces, trash, dirty
diapers, rotting food, exposed wires, choking hazards, and empty beer bottles
throughout the home. The children were locked in a room equipped with a door
alarm, and the bedroom smelled like urine. They were only wearing underwear,
were dirty, and were asking to leave the room but were not allowed. After multiple
attempts to maintain the parent-child relationship, the Department sought removal
in November of 2019.
After the trial court denied the Department’s request to terminate Appellant’s
and the mother’s parental rights in November of 2021, the children were placed with
5
Rodarte and McElvaney. Appellant was appointed possessory conservator, granted
weekly supervised visits, and ordered to attend family counseling sessions with his
children. Since being placed with Rodarte and McElvaney, the children began
trauma counseling sessions, and disclosed that Appellant physically and sexually
abused them.
Specifically, in December of 2021, when A.D.1. was seven years old, he told
Rodarte that Appellant inappropriately touched his penis. He then outcried to his
therapist and would sporadically mention Appellant touching his penis thereafter.
A.D.1. also told Rodarte and McElvaney that Appellant picked him up by the neck
and threw him across the room, beat him with a belt, and periodically locked him
and his siblings in a room.
Five-year-old I.D. likewise revealed that Appellant touched her vagina
inappropriately. She was masturbating in the living room in front of her brothers
and told McElvaney and Rodarte that Appellant touched her privates. According to
McElvaney, I.D. “seemed confused about why it was inappropriate for her father to
touch her.” She reiterated her outcry of sexual abuse to her therapist. I.D. further
recalled being locked in a hot, confined space while living with Appellant, and
frequently being hungry without access to the food in the house.
The Department moved to suspend Appellant’s visits based on A.D.1.’s and
I.D.’s outcries, which was granted on August 24, 2022 after an evidentiary hearing.
On the way to the hearing, A.D.1. projectile vomited in the car after learning of their
destination. He only calmed down when Rodarte and McElvaney told him he would
not be testifying.
A.D.1. would also sometimes vomit on the way to family therapy sessions
with Appellant, then cry, vomit, and hyperventilate afterwards. All the children
became stressed, defiant, and irritable before and after visits with their parents. Once
6
Appellant’s visits and family therapy sessions were suspended, A.D.1.’s stress-
induced vomiting stopped, and I.D. has not masturbated in the living room since
then.
Endangerment
In Appellant’s first and second issues, he challenges the legal and factual
sufficiency of the evidence to prove grounds (D), (E), and (F). Although only one
statutory ground is necessary to support termination, appellate courts must address
a parent’s challenges to a trial court’s findings under subsections (D) or (E), as they
may have implications for the parent’s rights to other children. See FAM.
§ 161.001(b)(1); In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due
process and due course of law considerations with respect to appellate review of
grounds (D) and (E) and holding that an appellate court must provide a detailed
analysis if affirming the termination on either of these grounds). If we conclude that
the evidence is legally and factually sufficient to uphold the trial court’s finding as to
either subsection (D) or (E), we need not address the arguments raised by Appellant
as to the remaining subsection. See FAM. § 161.001(b)(1); TEX. R. APP. P. 47.1. But
when the evidence pertaining to both subsections (D) and (E) is interrelated, as it is
here, we may conduct a consolidated review of the trial court’s endangerment
findings. See In re A.L.S., 660 S.W.3d 257, 263–64 (Tex. App.—San Antonio 2022,
pet. denied); In re J.D., 436 S.W.3d 105, 114 (Tex. App.—Houston [14th Dist.]
2014, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009,
no pet.).
The statutory endangerment grounds require clear and convincing proof that
the parent has: “(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child,” or “(E) engaged in conduct or knowingly placed the child with persons
7
who engaged in conduct which endangers the physical or emotional well-being of
the child.” FAM. § 161.001(b)(1)(D), (E); In re S.M.R., 434 S.W.3d 576, 585 (Tex.
2014). “‘Endanger’ means ‘to expose to loss or injury; to jeopardize.’” S.B. v. Texas
Dep’t of Fam. & Protective Servs., 654 S.W.3d 246, 253 (Tex. App.—Austin 2022,
pet. denied). The term “means more than a threat of metaphysical injury or potential
ill effects of a less-than-ideal family environment.” In re E.N.C., 384 S.W.3d 796,
803 (Tex. 2012).
The relevant inquiry under subsection (D) is whether the child’s environment
prior to removal, including the child’s living conditions and conduct by parents or
others in the home, endangered the child’s well-being. S.B., 654 S.W.3d at 253.
“Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home
. . . is part of the ‘conditions or surroundings’ of the child’s home under subsection
(D).” Id. at 253–54 (quoting V.P. v. Texas Dep’t of Fam. & Protective Servs., No.
03-19-00531-CV, 2020 WL 544797, a *10 (Tex. App.—Austin Feb. 4, 2020, no
pet.) (mem. op.); In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth
2009, no pet.)). The endangering conditions must be experienced by the child, not
anticipated. See In re J.W., 645 S.W.3d 726, 749 (Tex. 2022). “The suitability of a
child’s living conditions and the conduct of parents or others in the home are relevant
to a Subsection (D) inquiry.” Id. (citing In re R.S.-T., 522 S.W.3d 92, 108–09 (Tex.
App.—San Antonio 2017, no pet.)).
Endangerment under subsection (E), in contrast, focuses on the parent’s
conduct, and whether the endangerment of the child’s well-being was the direct
result of the parent’s acts, omissions, or failures to act. In re M.G., 585 S.W.3d 51,
57 (Tex. App.—Eastland 2019, no pet.). Additionally, termination under subsection
(E) must be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. Id.; In re D.T., 34 S.W.3d
8
625, 634 (Tex. App.—Fort Worth 2000, pet. denied). The offending conduct does
not need to be directed at the child, nor does the child actually have to suffer an
injury. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Endangerment evidence can be grouped into six categories: (1) sexually
transmitted disease; (2) sexual abuse; (3) criminal convictions; (4) alcohol and drug
abuse; (5) neglect; and (6) domestic abuse. S.M.R., 434 S.W.3d at 585; see also In
re I.R.H., No. 11-17-00070-CV, 2017 WL 3994682, at *2 (Tex. App.—Eastland
Sept. 8, 2017, no pet.) (Evidence of sexual abuse of one child is sufficient to support
a finding of endangerment with respect to other children.) (citing In re R.W., 129
S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied)).
Appellant argues that the trial court erroneously admitted the hearsay
statements of A.D.1. and I.D. that he physically and sexually abused them, thereby
asking us to disregard said statements in assessing the legal and factual sufficiency
of the evidence. We review a trial court’s rulings admitting or excluding evidence
for an abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020); In re
J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion if it acts
without reference to any guiding rules or principles—that is, if its ruling is arbitrary
or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). An appellate
court may not substitute its judgment for that of the trial court merely because it
would have ruled differently under the same circumstances. In re M-I L.L.C., 505
S.W.3d 569, 574 (Tex. 2016); Low, 221 S.W.3d at 619–20.
Section 104.006 of the Family Code permits the introduction of otherwise
inadmissible hearsay statements of a child twelve years of age or younger that
describes alleged abuse against the child if the trial court finds that the statements
are reliable based on the time, content, and circumstances thereof, and: (1) the child
testifies or is available to testify; or (2) admitting the statement in lieu of the child’s
9
testimony is necessary to protect the child’s welfare. FAM. § 104.006 (West 2019).
The term “abuse” as defined in Section 261.001 of the Family Code includes “sexual
conduct harmful to a child’s mental, emotional, or physical welfare,” including
conduct that constitutes the offense of continuous sexual abuse of a young child or
disabled individual, indecency with a child, a sexual assault, or aggravated sexual
assault. FAM. § 261.001(1)(E); see also TEX. PENAL CODE ANN. §§ 21.02, 21.11,
22.011, 22.021 (West 2019 & Supp. 2023).
Our sister courts have recognized that Section 104.006 is the civil analogue
of Article 38.072 of the Code of Criminal Procedure and use the same or a similar
type of analysis to determine reliability. See In re M.R., 243 S.W.3d 807, 813 (Tex.
App.—Fort Worth 2007, no pet.); In re E.A.K., 192 S.W.3d 133, 147 (Tex. App.—
Houston [14th Dist.] 2006, no pet.); In re P.E.W., 105 S.W.3d 771, 775–76 (Tex.
App.—Amarillo 2003, no pet.) (using similar factors, such as knowledge of
difference between truth and lies, whether the statements were volunteered or
resulted from questioning, whether a child of that age would have knowledge about
the matters described, and corroboration). Outcry reliability is determined on a case-
by-case basis, considering the circumstances of the outcry rather than the abuse
itself. Sanchez v. State, 354 S.W.3d 476, 484–85, 487–88 (Tex. Crim. App. 2011);
Buentello v. State, 512 S.W.3d 508, 518 (Tex. App.—Houston [1st Dist.] 2016, pet.
ref’d). Indicia of reliability that a trial court may consider under Article 38.072
include whether: (1) the child victim testifies at trial and admits making the out-of-
court statement; (2) the child understands the need to tell the truth and has the ability
to observe, recollect, and narrate; (3) other evidence corroborates the statement;
(4) the child made the statement spontaneously in his own terminology or whether
evidence exists of prior prompting or manipulation by adults; (5) the child’s
statement is clear and unambiguous and rises to the needed level of certainty; (6) the
10
statement is consistent with other evidence; (7) the statement describes an event that
a child of the victim’s age could not be expected to fabricate; (8) the child behaves
abnormally after the contact; (9) the child has a motive to fabricate the statement;
(10) the child expects punishment because of reporting the conduct; and (11) the
accused had the opportunity to commit the offense. Buentello, 512 S.W.3d at 518
n.4 (quoting Buckley v. State, 758 S.W.2d 339, 343–44 (Tex. App.—Texarkana
1988), aff’d on other grounds, 768 S.W.2d 357 (Tex. Crim. App. 1990); Torres v.
State, 424 S.W.3d 245, 257 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); see
also Hernandez v. State, No. 11-18-00232-CR, 2020 WL 5490719, at *2 (Tex.
App.—Eastland Sept. 11, 2020, no pet.) (mem. op., not designated for publication).
Here, Appellant does not dispute the ages or availability of the children to
testify. Instead, Appellant claims only that A.D.1.’s statement, “my dad touched my
penis,” and I.D.’s statement that Appellant “would touch her down there” failed to
specifically describe acts of sexual abuse.
Rodarte testified that while she and McElvaney were discussing appropriate
and inappropriate touching with the children, A.D.1. unambiguously stated that
Appellant touched his penis. A.D.1. was “upset,” and later expressed that Appellant
“should be in jail for what he did.” He described sitting on the couch while it
occurred, and said “he didn’t understand what was happening, and he was just, like,
there.” When Appellant’s trial counsel asked Rodarte whether there was “any
indication that this could have been something like he was having his diaper changed
or kind of a routine parental activity,” Rodarte responded that, according to A.D.1.,
Appellant “wouldn’t change [A.D.1’s] diaper.”
Around the same time period, Rodarte and McElvaney saw I.D. masturbating
in the living room. I.D. told them that Appellant “would touch her down there.” As
Rodarte and McElvaney explained “the appropriateness of masturbating and
11
touching yourself,” I.D. became upset, ashamed, embarrassed, and “confused about
why it was inappropriate for her father to touch her.” I.D. did not say anything about
a diaper change when she said that “[her] dad touched her privates.” Instead, she
told them that Appellant touched her private parts with his hand in her bedroom at
night.
Given the “time, content, and circumstances” of the children’s statements, we
conclude that the trial court did not abuse its discretion in admitting them. See FAM.
§ 104.006. It is undisputed that Appellant had the opportunity to sexually abuse his
children, and there was likewise nothing indicating that the children had a motive to
fabricate the statements. Appellant testified only that they were manipulated by his
mother and the foster parents, without further explanation. But Rodarte, McElvaney,
and the children’s therapists determined that the children were truthfully describing
acts of sexual abuse based on their demeanor, and the context in which the statements
were made. Along those lines, their behaviors changed when discussing the abuse.
See Buentello, 512 S.W.3d at 518 n.4. Finally, the children made their outcries of
sexual abuse spontaneously, without evidence to support Appellant’s
unsubstantiated claims that they were manipulated. This was sufficient for the trial
court as the factfinder to determine that the incidents rose to the level of abuse. See
id.; In re E.M., 494 S.W.3d 209, 218 (Tex. App.—Waco 2015, pet. denied).
With respect to the specificity of A.D.1.’s and I.D.’s outcries, “we cannot
expect the child victims of violent crimes to testify with the same clarity and ability
as is expected of mature and capable adults.” Villalon v. State, 791 S.W.2d 130, 134
(Tex. Crim. App. 1990). “To expect such testimonial capabilities of children would
be to condone, if not encourage, the searching out of children to be the victims of
crimes such as the instant offense in order to evade successful prosecution.” Id. We
further note that statements similar to A.D.1.’s and I.D.’s have constituted legally
12
sufficient evidence to support convictions for acts of sexual abuse against children.
See, e.g., Guevara v. State, 667 S.W.3d 422, 428–38 (Tex. App.—Beaumont 2023,
pet. ref’d) (child victim’s testimony that the defendant “put his private part inside
[hers]” and “made [her] touch his private” was legally sufficient evidence of
aggravated sexual assault of a child and indecency with a child); In re C.E.S., 400
S.W.3d 187, 194–95 (Tex. App.—El Paso 2013, no pet.); Jones v. State, 184 S.W.3d
915, 917–20 (Tex. App.—Austin 2006, no pet.) (conviction upheld based on child’s
testimony that defendant touched her “in her private area”); see also Tulio v. State,
No. 04-17-00778-CR, 2018 WL 6331034, at *3–4 (Tex. App.—San Antonio Dec. 5,
2018, no pet.) (mem. op., not designated for publication) (aggravated sexual assault
of a child conviction supported by child’s testimony that the defendant’s “middle
part” touched her “butt”); Martinez v. State, No. 11-13-00091-CR, 2015 WL
1778989, at *4–5 (Tex. App.—Eastland Apr. 16, 2015, no pet.) (mem. op., not
designated for publication) (conviction upheld based on the child victim’s testimony
that the defendant showed her his “middle”); Snodgrass v. State, No. 11-02-00104-
CR, 2003 WL 21363028, at *3–5 (Tex. App.—Eastland June 12, 2003, no pet.) (not
designated for publication) (evidence legally sufficient where child testified that the
defendant touched her “private spots”).
The trial court thus acted within its discretion in admitting the children’s
outcry statements and could have reasonably found under the circumstances that
there was no other nonsexual explanation for the touching. Because it is undisputed
that evidence of sexual abuse and a propensity toward violent behavior support a
finding of endangerment, the evidence was legally and factually sufficient to support
the trial court’s endangerment finding under subsections (D) and (E). See In re L.W.,
No. 01-18-01025-CV, 2019 WL 1523124, at *11 (Tex. App.—Houston [1st Dist.]
Apr. 9, 2019, pet. denied) (mem. op.) (“Without question, direct physical abuse of
13
the children clearly endangers them.”); I.R.H., 2017 WL 3994682, at *2; see also In
re W.B.W., No. 11-11-00269-CV, 2012 WL 2856067, at *10 (Tex. App.—Eastland
July 12, 2012, pet. denied) (mem. op.) (It is “beyond question” that sexual abuse
constitutes conduct that endangers a child’s physical or emotional well-being.)
(citing R.W., 129 S.W.3d at 742). Having found sufficient evidence of
endangerment under subsections (D) and (E), we need not address Appellant’s
argument as to subsection (F). N.G., 577 S.W.3d at 234–35; see also TEX. R.
APP. P. 47.1. Accordingly, we overrule Appellant first and second issues.
Best Interest of the Children
In Appellant’s third issue, he challenges the legal and factual sufficiency of
the evidence to support the trial court’s finding that termination of his parental rights
would be in the best interest of the children. The trial court, as the trier of fact, is
the sole judge of the witnesses’ credibility. J.F.-G., 627 S.W.3d at 312. We are not
at liberty to disturb the determinations of the trier of fact so long as those
determinations are not unreasonable. Id. at 311–12; J.P.B., 180 S.W.3d at 573.
Giving due deference to the trial court, we hold that, based on the evidence and the
Holley factors, the trial court could have reasonably formed a firm belief or
conviction that termination of Appellant’s parental rights would be in the best
interest of the children. See Holley, 544 S.W.2d at 371–72.
As evidence supporting termination under the grounds listed in
Section 161.001(b)(1) can be considered in the best-interest analysis, the trial court
could properly consider Appellant’s sexual abuse of A.D.1. and I.D., and physical
abuse of A.D.1 in determining whether the termination of Appellant’s parental rights
was in the best interest of the children. See C.H., 89 S.W.3d at 28. And we reiterate
that, although Appellant denied that he did anything wrong or inappropriate, the trial
court was the “sole arbiter when assessing the credibility and demeanor of
14
witnesses,” and was free to disregard evidence that it reasonably found to be
incredible. J.W., 645 S.W.3d at 741; In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
In addition to the evidence that Appellant physically and sexually abused his
children, the trial was presented with ample other evidence that Appellant lacked the
parental abilities to meet his children’s physical and emotional needs now and in the
future. As set forth above, the Department’s involvement in the underlying case
began in 2019 with the three young children playing in the middle of the street,
unsupervised, unclothed, and dirty. Police returned the children to their unsanitary
home where Appellant and the mother were asleep.
Appellant had been warned in the past about the unhygienic and unsanitary
living conditions for his children and had yet to demonstrate the ability to provide
his children with a clean and safe home. In 2016, the Department validated
neglectful supervision allegations against Appellant and the mother that A.D.1. and
I.D. 5 “constantly [went] without proper food,” were not bathed, and “[drank] out of
bottles and sippy cups that [had] mold and clotted milk.” The case was closed in
2017 after Appellant and the mother completed family-based services, but the trial
court could consider Appellant’s pattern of keeping the children in an unsanitary
environment when determining their best interest. See C.H., 89 S.W.3d at 28 (prior
history of child neglect has a bearing on a parent’s fitness to provide for his children).
Appellant refused to let Patricia Dotson, the most recent permanency case
manager, inside his home, but she testified that she could smell a “musty” odor even
while standing on the porch. Additionally, Appellant had not paid his court-ordered
child support since removal, nor had he offered any diapers or other contributions to
the caseworkers or foster parents in an effort to provide for his children. He said
5
A.D.2. was born on February 11, 2018, after the Department’s first intervention.
15
himself that “[i]t’s gotten to the point where [he] just [does]n’t even care no [sic]
more.”
Rodarte and McElvaney, by contrast, have given the children a clean, safe,
and stable home environment and have met all the children’s physical and emotional
needs. Dotson testified that: “[t]he children have stated time and time again . . . to
caseworkers, to anybody that they possibly can, that they desire to stay in the home
that they are in. They’re comfortable. They’[r]e loved. They’re very well taken care
of.”
Most importantly, given the child-centered focus of the best-interest inquiry,
we may not discount or minimize the children’s improvement since removal. See
J.W., 645 S.W.3d at 746–47. A.D.2. graduated from therapy and is nearly potty-
trained. A.D.1. and I.D. are still attending occupational therapy at least once a week,
and all three children receive speech therapy twice a week. A.D.1. receives services
for his dyslexia and emotional disturbance through his school, and I.D.’s medical
needs, including her heart defect, are being monitored and met in her foster parents’
care. Additionally, the children’s reading levels have improved, A.D.1. and I.D.
have learned coping skills, and, as Rodarte testified, the children are emotionally
resilient.
In addition to their physical and emotional improvement, the older children
have expressed the desire to be adopted. See Holley, 544 S.W.2d at 372–73. I.D.
told Rodarte, her therapist, and the case manager that she feels safe in her foster
home and has no interest in returning to Appellant’s home because she “did not feel
safe” there. A.D.1. told his foster parents and therapist that Appellant belongs in
jail, is “evil,” and that he was worried Appellant will abuse his newest child, J.D.6
6
J.D. was not a subject-child of the underlying suit and is not part of this appeal.
16
A.D.2. was nonverbal when the older children made their outcries and was too young
to remember the abuse prior to removal.
Upon considering the record as it relates to Appellant’s actions and inactions,
the desires of the children, the emotional and physical danger to the children now
and in the future, the emotional and physical needs of the children now and in the
future, Appellant’s parental abilities, Appellant’s history of sexual and physical
abuse, and the plans for the children by the Department, we hold that the evidence
is legally and factually sufficient to support the trial court’s finding that termination
of Appellant’s parental rights is in the best interest of the children. See Holley, 544
S.W.2d at 371–72; J.W., 645 S.W.3d at 741. Therefore, we overrule Appellant’s
third issue.
This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
January 11, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
17