in the Interest of A.S., a Child ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00235-CV
___________________________
IN THE INTEREST OF A.S. AND A.S., CHILDREN
No. 02-18-00236-CV
___________________________
IN THE INTEREST OF A.S., A CHILD
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-104278-16
Trial Court No. 323-106105-17
Before Gabriel, Kerr, and Pittman, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Mother appeals the termination of her parental rights to Andrew and Bruce in
cause number 02-18-00235-CV and to Charles in cause number 02-18-00236-CV. See
Tex. Fam. Code Ann. § 161.001(b). Asserting the same ground of error in both cases,
Mother asserts that the evidence is both legally and factually insufficient to support
the trial court’s findings that termination was in the children’s best interest. We affirm.
I. Preliminary Matters
To protect the parties’ privacy in this case, we identify the children, their
presumed father, and their alleged father by fictitious names and their mother and
maternal grandmother simply as Mother and Maternal Grandmother, respectively. See
id. § 109.002(d).
The suit involving Andrew and Bruce is trial court cause number 323-104278-
16, styled In the Interest of A.S. and A.S., Children. While that case was pending, Mother
gave birth to Charles; his case proceeded under trial court cause number 323-106105-
17, styled In the Interest of A.S., a Child. The trial court tried the two cases together.
Procedurally, the cases were further complicated because all three boys had
both a presumed father (Paul, whom Mother had married and separated from in
2011 but whom she had never divorced) and an alleged father (Fred, whom Mother
identified as the children’s father). In Andrew and Bruce’s case, when genetic testing
excluded Paul as their father, the trial court dismissed him, and after the bench trial,
the trial court terminated Fred’s parental rights to both boys. In the companion case
2
involving Charles, Paul did not submit to genetic testing, so after the joint bench trial,
the trial court terminated both Paul’s and Fred’s parental rights to him. Neither Paul
nor Fred has appealed.
II. Mother’s Contention
Mother asserts the same ground of error—evidentiary sufficiency—in each
appeal and includes a public-policy argument in the course of her analysis: the Texas
Department of Family and Protective Services’ initial plan was to make Maternal
Grandmother the children’s managing conservator and not terminate Mother’s
parental rights, but after the Department determined that Maternal Grandmother had
access to greater financial benefits as an adoptive parent than as a managing
conservator, the Department changed its plan to terminating Mother’s parental rights
and having Maternal Grandmother adopt the children.
Although not a discrete ground of error, Mother asserts that as a matter of
public policy this financial reason does not satisfy the Department’s burden of
proving best interest by clear and convincing evidence.
III. The Evidence
A. Mother’s parental rights to her daughter are terminated in 2014; Mother
gives birth to Andrew in 2015.
In 2012, Mother gave birth to Sissy—Andrew, Bruce, and Charles’s older sister.
But in 2014, the Department terminated Mother’s parental rights to Sissy, whom
Maternal Grandmother later adopted. Among the grounds listed in the termination
3
decree were endangerment findings under § 161.001(b)(1)(D) and (E) of the family
code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
The following year, in 2015, Mother gave birth to Andrew.
B. Mother engages in Family-Based Safety Services in 2016.
In February the next year, Fred allegedly went to Mother’s home, assaulted her,
and tried to stab her; at the time, Mother already had a protective order in place
against Fred. The Department assigned Marissa Tafolla to investigate.
Tafolla went to Mother’s home twice but no one answered, and when she went
to Mother’s leasing office, someone there told her that Mother was no longer a
resident. Despite being familiar with each other because Mother had had previous
cases in 2015, when Tafolla telephoned, Mother refused to meet her or to allow her to
see Andrew.
To locate Mother, the Department then employed a special investigator who,
after finding her, went to Mother’s home; Mother still refused to cooperate. But when
Tafolla herself went to Mother’s home, Mother allowed her to see Andrew, so the
Department decided to seek court-ordered services, the goal of which was to have
Mother complete services, keep Andrew in the home, and keep Andrew safe.
And in July or early August 2016, the Department did just that. As part of
Family-Based Safety Services (FBSS), 1 the trial court ordered Mother to complete
1
See id. § 264.204 (addressing services for less serious cases).
4
domestic-violence and mental-health counseling and to complete a psychological
evaluation.
After the court ordered these services, Tafolla visited Mother’s home one time.
Mother acknowledged to Tafolla that domestic violence between her and Fred was
occurring, but Mother attributed it to Fred’s losing his job and drinking a lot. At the
time Tafolla investigated Fred, he had a pending criminal charge involving an assault
on Mother, but Tafolla did not know its outcome.
In August 2016, when FBSS worker Anthony Roberson II contacted Mother,
she was pregnant. Later that month, Mother gave birth to Bruce.
Completing her in-home counseling and her psychological evaluation, Mother
participated in her court-ordered services.
But in November, the Department received multiple allegations that Fred had
moved back in with Mother, that Mother was displaying anger, and that domestic
violence was occurring—specifically that a television had been thrown. Roberson
went to Mother’s home to make sure Fred was not there and to explain to Mother
that if he was, the Department would likely remove her children. During the home
visit, Roberson noticed that the television was missing, but Mother explained its
absence by saying that it no longer worked.
On another occasion when Mother’s in-home counselor, Kimberly Dunn-
Lipscomb, went to Mother’s home, from the parking lot Dunn-Lipscomb heard
Mother screaming that she was going to beat somebody up. Despite denying the
5
incident to Roberson, Mother nevertheless agreed to counseling to address anger
issues.
C. The Department removes the children.
On December 28, Dunn-Lipscomb contacted Roberson about a disturbing text
that Mother had sent her. In that text, Mother had expressed suicidal ideations; she
“wanted God to come take her and the kids.” The next day, Dunn-Lipscomb went to
Mother’s home but was not allowed in; Dunn-Lipscomb could hear the children
crying inside the house.2
Roberson, his supervisor, and a police officer who came along to do a welfare
check also went to Mother’s home, where they heard a baby screaming but could not
hear Mother. Suddenly they heard Mother erupt in a volley of cursing and name-
calling; eventually, while holding the baby, Mother cracked the door open. After the
officer opened the door, Mother agreed to put the baby down on the sofa while
everyone talked. But after Mother put the baby down, she took a swing at the officer,
and—as Roberson put it—“the officer took her down from there.” They later found
Fred hiding in the closet, and when Roberson asked him why he was hiding, Fred
answered that he did not want CPS to remove his children.
The affidavit supporting the Department’s petition contains a transcription of
2
Mother’s text. Mother sent the text during the evening of December 28, which
appears to explain why the events leading to the removal occurred the next day.
6
Mother wanted her brother to take care of Andrew and Bruce, but Roberson’s
attempts to contact him failed, and when Mother refused to place her children with
Maternal Grandmother, the Department placed Andrew and Bruce in foster care.
Completing the removal, the trial court later named the Department as Andrew and
Bruce’s temporary managing conservator.
D. After the removal, the Department weighs its options and decides to
seek termination and adoption.
1. The caseworker recommends termination.
a. Mother’s domestic-violence and mental-health issues frustrate her
caseworker.
Karen Soto was the Department’s conservatorship caseworker for Mother,
Andrew, and Bruce. Just as in the FBSS case, the Department wanted Mother to
address domestic-violence issues and her mental-health situation.
But Mother denied any ongoing domestic violence, and when Soto confronted
Mother with Mother’s own reports accusing Fred of domestic violence, Mother
responded that the reports were lies. Despite her denials, Mother completed her
domestic-violence classes through SafeHaven in December 2017. When Soto later
asked Mother what she had learned, Mother responded that she had not learned
anything because none of it applied to her.
7
For mental-health issues, Mother attended MHMR,3 but Soto was not satisfied
with Mother’s documentation, elaborating, “[Mother] has provided me with two
documentations stating that she has been out to see MHMR but I’ve had this case
since 2017.4 . . . I constantly, throughout the case, asked for documentation of her
medication or I reached out to MHMR and there was never any consistency.”
Mother was allowed to visit the children while they were in Maternal
Grandmother’s care. At first, the Department supervised the visits, but Maternal
Grandmother began to supervise them. Although the visits generally went well, one
visit was cut short when Mother became aggressive. Soto stated that Mother was still
putting her children at risk with her aggressive behavior.
Soto described Mother as uncooperative with services. Throughout the case,
Mother maintained that she did not understand why her children were in care. Mother
acknowledged that domestic violence was a danger to her children but denied that any
domestic violence was occurring. Mother also asserted that because Fred was the
children’s father, she was not going to keep him away. Soto agreed that Mother was
not protective and did not understand the need for protection.
Soto testified that the Department was seeking termination because of the
concerns for ongoing domestic violence that Mother consistently denied despite the
Mental Health Mental Retardation. See In re S.L.S., No. 02-04-00186-CV,
3
2005 WL 250688, at *3 (Tex. App.—Fort Worth Feb. 3, 2005 no pet.) (mem. op.).
4
Soto received the case in January 2017 and testified on June 28, 2018.
8
police reports. The Department had also received calls from family members
complaining that Mother was behaving aggressively and police reports stating that
Mother was in jail for assaulting a family member. Soto’s other concern was Mother’s
mental health, which she felt had never been addressed.
b. Mother and Fred’s relationship remains cloudy.
In the beginning, Mother and Fred stated that they were a couple and wanted
to work on their relationship, so the Department wanted to provide family therapy to
work through the domestic-violence issues. But in the middle of the case, Mother and
Fred stated that they were no longer in a relationship and no longer wanted to work
together.
Soto last saw Fred in the Tarrant County jail in October 2017 after he had been
arrested for an unspecified “possession” and a robbery.
Mother gave birth to Charles in October 2017. 5 When Soto asked, Mother
admitted that Fred had been at the hospital for Charles’s birth and identified Fred as
Charles’s father, but she denied having an ongoing relationship with him.
Although Mother and Fred told Soto that their relationship had ended in
March 2017, Soto continued to receive information that they were still seeing each
other. Soto last saw them together in June 2017 and noted that Fred had been to jail
twice since that time. Nothing suggested that they were back together at the time of
5
The trial court appointed the Department as his temporary managing
conservator a few days later.
9
trial, Soto acknowledged, or that the children were ever physically injured during any
of the disputes. But she added that when the children came into care, they were
“[m]entally not so well.” Mother had not been able to provide the children a safe
environment.
c. The caseworker feared that Mother was considering letting a man
with an assault conviction live with her.
In May,6 text messages showed that Mother was possibly considering having a
person who was currently in prison for assault move in with her, which concerned
Soto because Mother was considering introducing someone not well-suited for her
children into her family. When Soto spoke to Mother about the texts, Mother
responded that it was none of Soto’s business, that Mother was a grown person, and
that the people Mother talked to was Mother’s concern. Although Soto had seen the
outside of Mother’s current residence, she had not been inside because Mother had
not allowed her in, so Soto had no way of knowing if anyone else was living with her.
d. Andrew exhibited violent behavior and delayed speech after his
removal but improved while in Maternal Grandmother’s care.
The Department placed Andrew, Bruce, and Charles with Maternal
Grandmother, who also had Sissy. Soto described all the children as doing very well in
Maternal Grandmother’s home. Initially, Andrew behaved aggressively—throwing
toys and hitting other children and himself—and was delayed in his speech. But Soto
6
Soto appears to be referring to May 2018. In May 2017, Mother was pregnant
with Charles.
10
stated that “[s]ince he’s been there, now he’s a completely different child. He’s able to
talk to you. He doesn’t hit.” Maternal Grandmother provided the children with a very
safe environment and engaged them in play therapy and any other follow-up services
that they needed, including “ECI.”7 Soto explained that Bruce was referred to ECI to
work on his motor skills. She described Charles as “a perfect baby,” growing and
developing as he should.
Maternal Grandmother was able to provide for the children, had a stable home,
and was meeting all their medical needs. Soto had no concerns with the placement.
Although the Department had concerns initially with Andrew because of delays in his
motor skills and his speech, he was currently “doing really great.” According to Soto,
“He’s actually – he’s thriving in that home. He’s talking, he’s interacting well with
others, his behavior has definitely completely changed from when he came into care.”
All three children had bonded with Sissy. The plan was for Maternal Grandmother to
adopt the children, which Soto thought was in the children’s best interest.
e. The Department opts for termination and adoption rather than
leaving Mother’s parental rights intact and making Maternal
Grandmother the children’s managing conservator.
Soto agreed that at one time the Department’s plan was managing
conservatorship to Maternal Grandmother, but its plan changed to asking the trial
court to award termination when Maternal Grandmother’s husband’s history ran afoul
Early Childhood Intervention. See In re E.P.C., 381 S.W.3d 670, 677 (Tex.
7
App.—Fort Worth 2012, no pet.).
11
of the Fostering Connections Program’s regulations. Because Maternal Grandmother
had successfully adopted Sissy, and because the Department did not want Maternal
Grandmother to struggle while providing for four children, the Department opted for
adoption and the additional help that Maternal Grandmother could receive as an
adoptive parent.
2. Maternal Grandmother recommends termination.
Maternal Grandmother testified that she had Andrew, Bruce, and Charles in
her home as well as Sissy, whom she had already adopted, and asked the court to
terminate Mother’s parental rights; she explained, “I feel like [Mother] loves her
children[,] but her motherly instincts are not . . . up to par . . . .” Maternal
Grandmother also stated that Mother wanted Fred in the children’s lives; Maternal
Grandmother did not think that was healthy. She added that the children “love their
mom and she loves them but as far as her providing for them and even just not
having the violent outbursts or the episodes, I don’t think she’s ready for that.” She
was concerned for the children’s safety if they were returned to Mother. When asked
whether she made her decision lightly, Maternal Grandmother answered, “No[,]
because when the case is closed, that’s still my daughter and I’m their granny. But I’m
all they have.” Maternal Grandmother said that when Andrew came into care, he
could not talk, was very aggressive, threw things, and resisted any redirection.
Andrew’s being around his own siblings caused safety concerns. She added, “I had
never seen a child act the way he did . . . . He was doing a lot. . . . I got him after he
12
was two. So his behaviors, . . . they were terrible. He was expressing things, I guess,
that he—I didn’t understand . . . .” She explained how counseling helped her with
Andrew: “I didn’t understand what he was doing and how he was[.] I had to be taught
myself. I had to have the same therapy[,] . . . and I thank them for it because . . . I
didn’t know how to deal with him at an early age like that.”
But on a more positive note, Maternal Grandmother continued: “He’s doing
so—he’s a totally different child with the help of ECI and the therapist. He’s totally
different. He talks. He’s such a good helper.” And regarding his siblings, she said, “He
tries to be the big brother. He and his sister—all the siblings, they get along. I mean
they are so close.” She thought that both the therapy and the stable, safe environment
had contributed to Andrew’s improvement.
Maternal Grandmother was also concerned about Mother’s maintaining her
treatment through MHMR, stating, “[T]he visits go . . . pretty smooth but . . . the
concern I have is that when she . . . gets really edgy . . . she’ll go from zero to 60 in a
matter of a second. So . . . if I don’t say the right thing—I feel like I’m walking on
[eggshells] . . . .” Addressing Mother’s medications, Maternal Grandmother said, “I
asked her if she’s taking her meds because I feel like she’s better when she takes them
but she always let[s] me know it’s none of my business . . . .” “So that’s my concern,”
she continued, “I’m concerned about her being on the meds and being able to be
stable mentally . . . to keep them.”
13
Maternal Grandmother wanted to adopt Andrew, Bruce, and Charles so that
they could have a safe, permanent home.
3. CASA recommends termination.
When the court-appointed special advocate (CASA) volunteer, Lisa Gordon,
was asked about Maternal Grandmother, she responded, “What I’ve seen is discipline,
a good[,] . . . stable environment[;] they have . . . their own room, they have routine[,]
and I’ve seen just a significant improvement in their . . . behavior[,] especially
[Andrew].” And when asked about Mother, Gordon said that Mother was “somewhat
[in] denial” and that she had expressed concerns about being unable financially to care
for the children.
And Mayra8 Guzman, a CASA supervisor, testified much in the same manner
as Soto and Maternal Grandmother, stating that when she first saw Andrew, he was
aggressive and screaming. “Whenever he wanted something,” Guzman said, “he
would just cry, get on the floor, [and] throw[] tantrums.” Because Andrew behaved so
aggressively and because his speech appeared to be delayed, Andrew concerned her.
But Guzman testified that after the Department placed Andrew with Maternal
Grandmother, she saw major improvements: “[Andrew] was able to verbalize some of
his needs, food or whatever he wanted . . . . I started hearing sentences, words. I mean
he had major improvements with [Maternal Grandmother].”
The reporter’s record identifies her as “Myra Guzman.” Correspondence from
8
CASA in the clerk’s record identifies her as “Mayra Guzman.”
14
Guzman stated that Maternal Grandmother had the ability to provide for the
children’s physical, emotional, and medical needs and provided a stable environment,
something that Guzman thought Mother was incapable of. So that Maternal
Grandmother could adopt the children, which was in their best interest, Guzman
recommended terminating Mother’s parental rights.
4. Mother opposes termination.
Mother testified and admitted that Fred visited her home frequently and that
there was an emergency protective order against him for an earlier assault on her. She
acknowledged that a domestic incident had occurred but maintained that it happened
at a different address. (The significance of the different address was Mother’s
assertion that by moving in with her father, she had removed herself from the
situation.)
Mother admitted, however, that she was later charged with a family-violence
assault against her father’s stepson but noted that she pleaded guilty only to disorderly
conduct. Even then, she maintained that she pleaded guilty only because she was
“dealing with the system.” Mother asserted that it was just a big misunderstanding and
only “an argument that escalated.”
In addition to the arrest, the “argument that escalated” appeared to have other
consequences. Mother admitted being kicked out of her father’s home over “an
argument and altercation.” When asked where she had lived during the case, Mother
15
answered, “I’ve lived in the homeless area but now I have my own place.” Her
present housing was provided through the Homeless Coalition.
Referring to a disability hearing that Mother had recently attended, she asserted
that she could work only 20 hours a week. Mother maintained that she had had
several jobs during the case but admitted having trouble keeping a job. “You guys,”
she explained, “have traumatized me and destroyed my life. I have a hard time
functioning on a job.”
Mother claimed that she went to MHMR consistently, that she was prescribed
Celexa for depression, that she was taking everything that she was prescribed, and that
she took her medication every morning. Mother asserted that she was diagnosed with
a major depressive disorder because the Department had taken her children from her.
Other than that major depressive disorder, she stated, “I don’t have anything else.” 9
Mother attributed Andrew’s poor condition when he came into care to his
being removed from her home in the middle of the night. She acknowledged that
domestic violence may have played a role in his behavior but denied that it played a
primary one.
When the Department removed the children on December 29, Mother
admitted that the police arrested her for assault on a public servant and for resisting
9
The clerk’s record, with references to a bipolar disorder, painted a different
picture. At trial, the Department did not challenge Mother’s assertion that her
diagnosis was limited to a major depressive disorder.
16
arrest, but she asserted that resisting arrest was the only offense of which she had
been convicted. And Mother admitted that Fred was in her closet that day.
According to Mother, her relationship with Fred was off and on between June
2016 and January or February 2017, which was when she purportedly last saw him.
He told her that he was moving to Mississippi because that was where he was from.
Arguing against terminating her parental rights, Mother said, “I mean, I love
my children. I haven’t done anything wrong to my children. I haven’t abused them.
I’m not on any type of drugs. I mean I love my children. I don’t feel like my rights
should be terminated.”
When asked how her children were doing in Maternal Grandmother’s care,
Mother answered, “I think they’re doing great. My mama is doing a wonderful job.”
IV. Standard of Review
A. Generally
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except the child’s right to inherit.
Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Consequently, “[w]hen the State seeks to sever permanently the relationship between
a parent and a child, it must first observe fundamentally fair procedures.” In re E.R.,
385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48,
102 S. Ct. 1388, 1391–92 (1982)).
17
Termination decisions must be supported by clear and convincing evidence. See
Tex. Fam. Code Ann. § 161.001(b), § 161.206(a); In re E.N.C., 384 S.W.3d 796,
802 (Tex. 2012). Due process demands this heightened standard because “[a] parental
rights termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at
1397). Evidence is clear and convincing if it “will produce in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the party seeking
termination must establish, by clear and convincing evidence, two things: (1) the
parent’s actions satisfy just one of the many grounds listed in family code
§ 161.001(b)(1), and (2) termination is in the child’s best interest under
§ 161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C., 384 S.W.3d at 803;
In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; that is,
termination may not be based solely on the child’s best interest as determined by the
factfinder. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
B. Best Interest
We acknowledge the strong presumption that keeping a child with a parent is in
the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). To determine the
child’s best interest, we review the entire record. In re E.C.R., 402 S.W.3d 239,
18
250 (Tex. 2013). The same evidence used to show a subsection (1) ground may be
probative when determining best interest under subsection (2). Id. at 249; In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the factfinder may use when
determining the child’s best interest include
• the child’s desires;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best
interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate that the existing parent-child
relationship is not a proper one; and
• any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at
249 (stating that in reviewing a best-interest finding, “we consider, among other
evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These
factors are not exhaustive, and some of them may not apply to some cases. C.H.,
89 S.W.3d at 27. Furthermore, undisputed evidence of just one of these factors may
suffice in a particular case to support a finding that termination is in the child’s best
19
interest. See id. On the other hand, in some cases, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
C. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental-termination cases, we
determine whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction that the Department proved both the particular ground for
termination and that termination is in the child’s best interest. In re J.F.C., 96 S.W.3d
256, 265–66 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review
all the evidence in the light most favorable to the finding and judgment, and we
resolve any disputed facts in favor of the finding if a reasonable factfinder could have
done so. J.F.C., 96 S.W.3d at 266. We also must disregard all evidence that a
reasonable factfinder could have disbelieved, in addition to considering undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard contrary
evidence unless a reasonable factfinder could not. See id. In doing our job, we cannot
weigh witness-credibility issues that depend on the witness’s appearance and
demeanor because that is the factfinder’s province. J.P.B., 180 S.W.3d at 573. And
even when credibility issues appear in the appellate record, we defer to the factfinder’s
determinations as long as they are not unreasonable. Id.
20
D. Factual Sufficiency
We must perform “an exacting review of the entire record” in determining
whether the evidence is factually sufficient to support terminating a parent-child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence
for factual sufficiency, we give due deference to the factfinder’s findings and do not
supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
We determine whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated an alleged ground and that termination
was in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); see C.H., 89 S.W.3d
at 25. If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction in the truth of
its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
V. Discussion
A. Mother does not contest the § 161.001(b)(1) (grounds) findings.
The trial court found grounds for termination under subsections (D), (E), and
(M)—that is, that Mother had, respectively, (1) knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered their
physical or emotional well-being (subsection (D) ground), (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered
the children’s physical or emotional well-being (subsection (E) ground), and (3) had
21
her parent-child relationship terminated with respect to another child based on a
finding that her conduct had violated subsection (D) or (E) of § 161.001(b)(1) of the
family code (subsection (M) ground). See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (M). Mother does not contest any of these findings.
The same evidence establishing grounds under § 161.001(b)(1) may also help
establish best interest under § 161.001(b)(2). See In re D.R.A., 374 S.W.3d 528,
533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). So from the outset, we have
uncontested findings that Mother endangered her children. See Holley, 544 S.W.2d at
372.
B. We reject Mother’s public-policy argument.
Mother correctly asserts that the Department considered Maternal
Grandmother’s finances when deciding how to prosecute the cases, but while we
agree that parental rights may not be terminated simply for financial reasons, the
record here reveals that financial reasons were not what led to terminating Mother’s
parental rights. See In re A.N., No. 02-14-00206-CV, 2014 WL 5791573, at *18 (Tex.
App.—Fort Worth Nov. 6, 2014, no pet.) (mem. op.). The benefits here were not
intended as inducements to terminate but as assurances of stability in the event of
termination. See In re D.S., No. 02-15-00350-CV, 2016 WL 1267808, at *9 (Tex.
App.—Fort Worth Mar. 31, 2016, no pet.) (mem. op.).
In connection with her public-policy argument, Mother cites no authority. See
In re J.D., No. 02-18-00255-CV, 2019 WL 150292, at *3 (Tex. App.—Fort Worth Jan.,
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10, 2019, no pet. h.) (“Father cites no direct authority for his public-policy argument
that placing a child with a family member should insulate a parent from losing his
parental rights. . . . We therefore reject Father’s argument.”); In re D.O., 338 S.W.3d
29, 38 (Tex. App.—Eastland 2011, no pet.) (rejecting parent’s assertion that the state
policy was to seek a relative placement over termination and over naming the
Department as managing conservator). What is in the children’s best interest is the
standard. See Tex. Fam. Code Ann. § 161.001(b)(2). An underfinanced placement
might destabilize its security and permanence. The record suggested that Mother had
difficulty supporting herself and that looking to Mother to help support her four
children was not a viable option. We reject Mother’s argument that the Department
cannot consider the postplacement financial implications of various options when
deciding how best to proceed in a suit affecting the parent-child relationship. And
more critically, as we show below, finances were not the force driving the
Department’s decision to seek termination. See A.N., 2014 WL 5791573, at *18.
C. The evidence supports the trial court’s best-interest findings under
family code § 161.001(b)(2).
If the trial court believed, as Mother asserted, that there was no ongoing
domestic violence, that would have weighed in Mother’s favor—but the trial court did
not have to believe Mother. The factfinder enjoys the right to resolve credibility issues
and conflicts within the evidence and may freely choose to believe all, part, or none of
any witness’s testimony. In re T.N., 180 S.W.3d 376, 382–83 (Tex. App.—Amarillo
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2005, no pet.). Violence—domestic or otherwise—was a recurring theme in the
evidence:
• Domestic violence led to the protective order against Fred.
• Domestic violence precipitated the FBSS case in February 2016.
• The police arrested Mother for assaulting a police officer and resisting
arrest at the removal in December 2016.
• The police arrested Mother for family-violence assault against her
father’s stepson.
• Mother’s father kicked her out of his house for an altercation.
And although Mother testified that she and Fred were no longer a couple and
that Fred had moved back to Mississippi, the trial court did not have to believe her.
See id. Even assuming Fred had moved to Mississippi, other evidence suggested that
Mother was considering inviting another man—one with an assault conviction—to
move into her home. Finally, in both cases we have the trial court’s unchallenged
findings that Mother endangered the children’s emotional and physical well-being
under subsections (D) and (E) and that Mother had previously endangered another
child’s emotional and physical well-being under subsection (M). See Holley, 544 S.W.2d
at 372.
Mother disputed that anything she had done had ever harmed her children and
attributed Andrew’s aggressive and violent behavior to the trauma of the removal
itself; only grudgingly did she agree that any violence at home played a part in his
behavior, and according to her, it played at best only a minor part. But the trial court
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was free to believe just the opposite—that Andrew’s condition was attributable to the
violence in Mother’s home and that the removal, far from worsening his condition,
led directly to his improved condition. See T.N., 180 S.W.3d at 382–83. Notably, Soto,
Guzman, and Maternal Grandmother all saw Andrew improve after the removal.
Moreover, the record showed that Mother had instability in her relationship
with Fred, instability in keeping a job, and instability in her housing. In contrast,
Maternal Grandmother could offer Andrew, Bruce, and Charles both stability and
permanence. See Holley, 544 S.W.2d at 372. When bringing up a child, stability and
permanence are paramount. In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth
2009, pet. denied).
Viewing the evidence in the light most favorable to the judgment, we hold that
a factfinder could reasonably form a firm belief or conviction that terminating
Mother’s parental rights was in Andrew’s, Bruce’s, and Charles’s best interest, and that
the evidence is therefore legally sufficient to support the best-interest findings. See
J.P.B., 180 S.W.3d at 573; see also Tex. Fam. Code Ann. § 161.001(b)(2).
And based on the entire record and giving due deference to the trial court’s
findings, we also hold that a factfinder could reasonably form a firm conviction or
belief that terminating Mother’s parental rights was in Andrew’s, Bruce’s, and
Charles’s best interest, and that the evidence is thus also factually sufficient to support
the best-interest finding. See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28; see also
Tex. Fam. Code Ann. § 161.001(b)(2).
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We overrule Mother’s legal- and factual-insufficiency challenges in both
appeals.
VI. Conclusion
Having overruled Mother’s grounds of error, we affirm the trial court’s
judgments in both causes.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: January 17, 2019
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