M. L. and S. D. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00541-CV
M. L. and S. D., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 322,622, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
S.D. (Mother) and M.L. (Father) appeal the order terminating their parental rights
to H.C.-M.D.-L. (Child).1 In two appellate issues, Mother challenges the sufficiency of the
evidence to support the jury’s findings against her under the endangerment statutory predicates
for termination and under the statutory best-interest requirement. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (2). In a sole appellate issue, Father challenges the sufficiency of the
evidence to support the jury’s finding against him under the best-interest requirement. We affirm.
BACKGROUND
When Mother and Father began their relationship, Mother knew that Father was
a convicted sex offender. Around 2009, he had pleaded guilty both to online solicitation of a
1
We refer to some people in this opinion by initials, fictitious names, or aliases to protect
privacy. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2).
minor—an officer who was posing as a 14-year-old—and to possession of child pornography.
He has completed his sentence of six years’ probation. When Child was born in November 2020,
Mother was living with her two half-siblings, Kaila and Thomas Naylor.2 Eleven people lived in
the home from November 2020 to February 2021—Mother, Child, Kaila, Thomas, the Naylors’
six children, and the Naylors’ then-13-year-old daughter’s daughter (the Naylor granddaughter).
While living with the Naylors, Mother once asked the oldest Naylor son whether anything was
going on and whether anything was hurting him.
Because Mother often had to work double shifts, Kaila was the primary caregiver
for Child and the other seven children in the home, home-schooling the school-aged ones.
Mother’s absence for work meant that Thomas was sometimes home with Child while Mother was
gone. Partly because Kaila was usually the only adult there, the home grew filthy. She admitted
the “horrible” condition of the home, and Mother agreed that “the house had an overwhelming
smell of urine” and was unsafe for children because of how dirty it was. For example in the
bathroom, the “bathtub had pieces of feces in it.” In February 2021, the Department of Family
and Protective Services began investigating why the Naylor granddaughter was not being taken to
regular medical appointments. After seeing the conditions of the home, they removed Child and
all other children from the home, and Mother does not believe that the removal was wrongful.
About five days later, the home burned down during Winter Storm Uri, and Mother later moved
in with Father.
2
Kaila is Mother’s half-sibling by their mutual father, and Thomas is Mother’s half-sibling
by their mutual mother (Grandmother). Kaila and Thomas are not related by blood, but they grew
up together in Grandmother’s home, where Grandmother “raised [them] as siblings.” Thomas
first left their childhood home at age 16 because he was incarcerated. Grandmother agreed that
Thomas, upon release “got out of jail and married his sister,” Kaila. The news shocked
Grandmother.
2
Before the February 2021 removal, the Naylors’ daughter who has a daughter of
her own had explained to Mother and others that she became pregnant at 11 years old after an
unknown, hooded assailant raped her on her way home from school. However, it was soon
discovered that Thomas actually fathered his own granddaughter. A genetic test later confirmed
that the granddaughter was the product of first-degree-incestual parentage—either a parent or
sibling of the Naylor daughter had impregnated her. The abuse had gone on undetected while
Mother and Child lived with the Naylors.
The truth about Thomas’s raping his daughter soon came to light, as did allegations
that he had sexually assaulted two more of his daughters in the home. Thomas went on the run,
deserting Kaila and the children, quitting his job, withholding child support from Kaila, evading
arrest, and not showing up for any more hearings in the Department case involving his children.
After the removal, a Department caseworker placed Child with a foster placement.
When she arrived at the foster home, Child was dirty, her “sleeper” was dirty, and she had dirt
underneath her finger- and toenails. About two months later, the Department moved Child from
the foster placement into the care of Mother’s mother (Grandmother). But about seven months
after that, Child was removed from Grandmother’s care and placed back with the foster mother.
This second removal stemmed from calls made by Father to a Department
caseworker after Father and Mother broke up. He told the caseworker that he and Mother had
been letting Thomas stay with them and that Mother had been allowing Thomas to be around
Child. Around the same time, Kaila cut off contact with Mother once Kaila, in her words, “saw
[Mother] was still having contact with” Thomas. Mother admitted to staying in contact with
Thomas and to letting him stay with her. Father explained that even after Thomas stopped showing
up to his own court hearings, Father and Mother gave Thomas a place to stay while he was
3
couch-surfing. The caseworker’s concerns grew when she saw a video from Child’s one-
year-birthday party at Father’s house, where it appeared Thomas was present, corroborating
Father’s allegations. Mother and Father were also at the party.
Mother’s statements about Thomas, both in conversations with Department
personnel and during therapy sessions, changed over time. She first denied that Thomas had come
around her at all but later admitted that she let Thomas stay with her and Father one night and later
again admitted multiple nights’ stays but said that she would send Thomas away if Child was
around. According to the caseworker, the June 2022 trial in this suit was the first time Mother
admitted that letting Thomas be near children would be a problem, maintaining before then that
the allegations against Thomas had never been proven.3 The caseworker also explained that after
Thomas stopped staying with Mother, Thomas stayed somewhere else nearby.
Department personnel went to Grandmother’s trailer to remove Child and after
hours of trouble finding Grandmother or Child, called in help from law enforcement. They all
returned the next day and found Grandmother and Child in the trailer. While walking up to the
trailer, a caseworker could smell cigarette smoke and saw litter. In fact, Child herself gave off
a strong odor of cigarette smoke—so strong that for a full day Child’s coughs and sneezes
smelled like smoke and it took the foster mother days of washing Child’s hair several times to
get the smell out. The foster mother has kept Child ever since and is willing to keep her until
the Department can find a permanent placement, possibly with Child’s relatives in either
Massachusetts or Connecticut.
3
Grandmother testified at trial that she does not believe that Thomas sexually abused his
daughters, in part because it had not yet been proven to her.
4
The Department filed this suit to terminate Mother’s and Father’s parental rights to
Child. The trial court submitted questions to the jury concerning two statutory predicate grounds
for terminating each parent’s rights—Subsections (D) and (E)—and best-interest questions for
each parent. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (2). The jury answered all three
questions concerning Mother in the Department’s favor, and though it answered the
Subsection (D) question about Father in his favor, it answered the Subsection (E) and best-interest
questions about him in the Department’s favor. The court rendered judgment on the jury’s verdict,
terminating both parents’ rights to Child, and Mother moved for a new trial on the grounds that
the evidence was legally and factually insufficient to support the findings made against her under
Subsections (D) and (E) and best interest. The court denied Mother’s motion, and both Mother
and Father now appeal.4
APPLICABLE LAW AND STANDARD OF REVIEW
To terminate parental rights, the Department must prove both (1) one of the
statutory predicate grounds and (2) that termination is in the best interest of the child. See Tex.
Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department
must prove both elements by clear and convincing evidence. See Tex. Fam. Code § 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the
4
After Mother and Father filed their notices of appeal, the trial court, on the Department’s
motion, signed an “Order Nunc Pro Tunc” to correct references to Child’s name because of a
misspelling. The Order otherwise contains the same content that the earlier judgment terminating
Mother’s and Father’s parental rights contains. The court signed the Order while the court still
had plenary power over its judgment, the Order is the final judgment in the suit, and we treat
Mother’s and Father’s appeals as from the Order. See Tex. R. Civ. P. 329b(e), (h); Tex. R. App.
P. 27.3; LaGoye v. Victoria Wood Condo. Ass’n, 112 S.W.3d 777, 783 n.7 (Tex. App.—Houston
[14th Dist.] 2003, no pet.).
5
measure or degree of proof that 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 § 101.007;
accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Legal-sufficiency review of the evidence to support termination requires reviewing
all the evidence in the light most favorable to the finding under attack and considering undisputed
contrary evidence to decide whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).
“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding
against all the evidence favoring the finding.” Id. at 631. “Evidence is factually insufficient if, in
light of the entire record, the disputed evidence a reasonable factfinder could not have credited in
favor of a finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” Id.
When reviewing the evidence, 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). The jury is entitled to disbelieve any witness’s testimony. S.C. v. Texas Dep’t
of Fam. & Protective Servs., No. 03-20-00039-CV, 2020 WL 3892796, at *15 (Tex. App.—Austin
July 10, 2020, no pet.) (mem. op.). And it is the jury’s role to draw any reasonable inferences from
the evidence that it chooses and to choose between conflicting reasonable inferences. See In re
J.W., 645 S.W.3d 726, 745 (Tex. 2022); B.D. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-20-00118-CV, 2020 WL 5100641, at *17 (Tex. App.—Austin Aug. 28, 2020, pet. denied)
(mem. op.).
6
MOTHER’S APPELLATE ISSUES
In her first appellate issue, Mother maintains that the evidence was legally
and factually insufficient to support termination under either of the endangerment statutory
predicates—Subsections (D) and (E). See Tex. Fam. Code § 161.001(b)(1)(D), (E). Termination
under Subsection (D) requires that the parent has “knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the physical or emotional well-being
of the child.” See id. § 161.001(b)(1)(D). Subsection (E) requires that the parent has “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.” See id. § 161.001(b)(1)(E). We often conduct
evidence-sufficiency reviews under both these predicates simultaneously when, as here, the
evidence relevant under each is interrelated. See, e.g., H.G. v. Texas Dep’t of Fam. & Protective
Servs., No. 03-22-00373-CV, 2022 WL 17169847, at *5 (Tex. App.—Austin Nov. 23, 2022,
no pet. h.) (mem. op.); 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.).
For purposes of both predicates, “‘[e]ndanger’ means ‘to expose to loss or injury;
to jeopardize.’” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Texas Dep’t
of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). “Although ‘“endanger” means more
than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment, it is not necessary that the conduct be directed at the child or that the child actually
suffers injury,’” id. (quoting Boyd, 727 S.W.2d at 533), or even that the conduct happen in the
child’s presence, 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.). “Endangerment
does not have to be established as an independent proposition, but can be inferred from parental
7
misconduct alone,” and courts may look to conduct “before the child’s birth and both before
and after the child has been removed by the Department.” Id. “As a general matter,” however,
“the relevant time frame” for Subsection (D) review is usually “before the child’s removal ‘since
conditions or surroundings cannot endanger a child unless that child is exposed to them.’” J.W.,
645 S.W.3d at 749 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013,
pet. denied)). An exception exists for when the parent “cause[s] his child to be placed in an
endangering environment after removal.” Id. at 749 n.12. “Conduct that subjects a child to a life
of uncertainty and instability endangers the child’s physical and emotional well-being.” Pruitt,
2010 WL 5463861, at *4.
The relevant inquiry under Subsection (E) is whether the endangerment of the
child’s well-being was the direct result of a person’s conduct, including acts, omissions, or failures
to act. See T.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00174-CV, 2021
WL 4692471, at *6 (Tex. App.—Austin Oct. 8, 2021, pet. denied) (mem. op.); In re J.F.-G.,
612 S.W.3d 373, 382 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304 (Tex. 2021). If the
endangering person is someone other than the parent–appellant, then the parent generally must
have known of the other person’s endangering conduct. See J.F.-G., 612 S.W.3d at 384; In re
F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018), pet. denied, 579 S.W.3d
74 (Tex. 2019) (per curiam). “Termination under subsection (E) requires more than a single act
or omission, and the Department must show a voluntary, deliberate, and conscious course of
conduct by the parent, considering a parent’s actions both before and after the child was removed
from the home.” T.M., 2021 WL 4692471, at *6.
By contrast, the relevant inquiry under Subsection (D) is whether the child’s
environment, including the child’s living conditions and conduct by parents or others in the home,
8
endangered the child’s well-being. V.P., 2020 WL 544797, at *4. “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.; see In re J.I.T.P., 99 S.W.3d 841,
845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Domestic violence, want of self-control,
and propensity for violence may be considered as evidence of endangerment.”).
The evidence here established two primary sources of endangerment through
Mother’s endangering conduct toward Child and knowingly allowing Child to remain in
endangering conditions. First, the evidence established Thomas’s continued presence near the
Child and near Mother. The jury did not have to believe Mother’s denials about Thomas’s
continued presence. See In re E.V.V.M.-H., No. 01-18-00888-CV, 2019 WL 1388029, at *6 (Tex.
App.—Houston [1st Dist.] Mar. 28, 2019, no pet.) (mem. op.) (evidence supported termination
under Subsection (E) in part because evidence showed that “[a]s a result of the mother’s activities,”
“possible sexual predators” had “easy access to her home,” thus endangering child “because
[mother] has created a potential for danger that she disregards”); P.A.G. v. Texas Dep’t of Fam. &
Protective Servs., 458 S.W.3d 595, 609 (Tex. App.—El Paso 2014, no pet.) (stating in support of
upholding Subsection (E) finding against parent, “Appellant’s own conduct demonstrates that she
lacks the capacity to ascertain danger to her children”). Second, the jury heard about the unsanitary
condition of the home pre-removal. See In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler
2003, no pet.) (“Unsanitary conditions can qualify as surroundings that endanger a child.”); accord
Leal v. Texas Dep’t of Protective & Regul. Servs., 25 S.W.3d 315, 325 (Tex. App.—Austin 2000,
no pet.), disapproved of on other grounds, J.F.C., 96 S.W.3d at 267 & n.39.
According to a caseworker’s testimony, even after Mother knew about the reports
of Thomas’s raping his older daughter and sexually assaulting two more, Mother still allowed
9
Thomas to be around Child at the birthday party and still allowed Thomas to stay the night where
Mother and Father lived. The caseworker and others testified about Mother’s changing responses
to the reports. Mother (and Grandmother as well) first denied outright that Thomas had done
anything, then minimized Thomas’s conduct, continued minimizing5 it even after learning of the
results of the genetic test, and then only at trial admitted that it would be a problem for Thomas to
be near Child. The caseworker summed it up when she testified that before trial, both Mother and
Father “never really indicated that it would be any problem for [Thomas] to be around” Child.
Mother denied all this at trial, and her testimony was equivocal about when she first heard reports
of Thomas’s conduct, first agreeing that she heard them in September 2020 but later saying that
she first heard them only after the February 2021 removal and not remembering the specific month.
The jury was within its rights not only to disbelieve Mother’s denials but also to infer from all the
testimony that Mother disregarded or did not fully appreciate the danger that Thomas posed to
Child. See J.W., 645 S.W.3d at 745; A.B., 437 S.W.3d at 503; B.D., 2020 WL 5100641, at *17;
S.C., 2020 WL 3892796, at *15. We conclude under the applicable standard that the evidence
was legally sufficient to support the Subsection (E) finding against Mother. See E.V.V.M.-H.,
2019 WL 1388029, at *6; P.A.G., 458 S.W.3d at 609.
The jury also heard testimony and saw exhibits about the unsanitary condition of
the 11-resident home pre-removal. Not only did Department personnel testify about the home’s
condition, but Mother and Kaila also admitted how bad things had gotten. Mother admitted that
“the house had an overwhelming smell of urine.” She did not dispute that the removal was
5
The caseworker added that both Mother and Father minimized Father’s sex crimes as
well, either by denying that they happened or by referring to them only as his being depressed or
drinking too much, causing him to solicit for sex a person he thought was a minor.
10
appropriate because of the home’s condition and knew that it was unsafe for Child because of how
dirty it was. And Kaila added that the home was in fact in “horrible” condition. We conclude
under the applicable standard that the evidence was legally sufficient to support the Subsection (D)
finding against Mother. See C.L.C., 119 S.W.3d at 392; Leal, 25 S.W.3d at 325.
Mother’s factual-sufficiency challenges to both predicate findings depend on
witness testimony, most especially her own. For example, she argues from her testimony that she
only stayed in contact with Thomas to scold him and that she never let him stay with her when
Child was around. But the jury was free to disbelieve all or any part of Mother’s or the other
witnesses’ testimony and to choose the reasonable inferences from the evidence that it would credit
above other, conflicting inferences. We may not invade these roles of the jury’s and thus conclude
that the evidence also was factually sufficient to support the Subsection (D) and Subsection (E)
findings against Mother. We overrule Mother’s first issue.
In her second issue, Mother maintains that the evidence was legally and factually
insufficient to support the best-interest finding against her. Best-interest analysis “is child-
centered and focuses on the child’s well-being, safety, and development.” A.C., 560 S.W.3d
at 631. There is a strong presumption that a child’s best interest is served by maintaining the
parent–child relationship. D.J. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00323-CV,
2020 WL 7395924, at *5 (Tex. App.—Austin Dec. 17, 2020, pet. denied) (mem. op.).
Our evidence-sufficiency review is guided by several non-exclusive factors taken
from Holley v. Adams: (1) the child’s wishes, (2) the child’s present and future emotional and
physical needs, (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 in promoting the child’s best interest, (6) the plans for the child by those individuals
11
and by the agency seeking custody, (7) the stability of the home or the agency’s proposed
placement, (8) the parent’s acts and omissions that may indicate that the existing parent–child
relationship is improper, and (9) any excuse for the parent’s acts and omissions. See 544 S.W.2d
367, 371–72 (Tex. 1976). The Department need not prove all these factors, and the lack of
evidence under some factors does not preclude a finding that termination is in the child’s best
interest. See C.H., 89 S.W.3d at 27. “The need for permanence is the paramount consideration
when determining a child’s present and future physical and emotional needs.” M.R. v. Texas Dep’t
of Fam. & Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3 (Tex. App.—Austin
Feb. 23, 2018, no pet.) (mem. op.). Evidence probative under the statutory predicate grounds may
be probative of best interest as well, A.C., 560 S.W.3d at 631–32, including especially evidence
showing endangerment, see C.H., 89 S.W.3d at 28; V.P., 2020 WL 544797, at *8.
Evidence under the first factor—Child’s desires—is lacking because Child was too
young to express her wishes. She was only about one year and seven months old at trial.
Under the second, third, fourth, seventh, eighth, and ninth factors, we consider the
evidence from the endangerment predicates. See, e.g., In re C.A.J., 122 S.W.3d 888, 893 (Tex.
App.—Fort Worth 2003, no pet.) (considering in best-interest analysis “parent’s inability to
provide adequate care for the child, lack of parenting skills, [and] poor judgment”). The jury
reasonably could have believed that Mother hid Thomas’s continued involvement in her life and
knew that she needed to do so because she knew that letting him near Child was dangerous. See
Wischer v. Texas Dep’t of Fam. & Protective Servs., No. 03-12-00165-CV, 2012 WL 3793151,
at *8 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem. op.) (“The jury could reasonably have
concluded that Wischer continued to exercise poor choices regarding her personal associations,
which endangers her children’s physical and emotional well-being now and in the future.”).
12
Mother also minimized Father’s sex crimes, by denying that they happened or by thinking of them
only as his being depressed.
The jury also heard testimony about Mother’s demanding work schedule leading
up to trial and that Child was placed with Grandmother for a time. And the jury heard that
Grandmother would continue to help Mother care for Child if Child stayed with Mother.
Given these circumstances, the evidence about Child’s health being harmed by Grandmother’s
care was relevant. See C.F. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00250-CV,
2021 WL 5018839, at *9 (Tex. App.—Austin Oct. 29, 2021, pet. denied) (mem. op.) (stating in
best-interest review that factfinder “may consider the consequences of its failure to terminate
parental rights”). The caseworker who removed Child from Grandmother’s care gave evidence
about the quality of that care. She testified that when Child was removed from Grandmother’s
care, Child had dried food smudged around her mouth and “a very strong odor about her” of both
cigarette smoke and an “odor that is commonly found in dirty homes.” The caseworker had to
take what was to her an extraordinary step of buying Child new diapers and pajamas “[b]ecause
the odor on her was very strong,” not dissipating “in any way” over “the six hours that” the
caseworker had Child and matching the odor of the inside of Grandmother’s trailer. Even with the
new clothes, Child “still smelled of cigarette smoke.” Plus, while changing Child’s diaper, the
caseworker saw “some discoloration around [Child’s] vaginal and anal area,” which mostly
“appeared to be a diaper rash, but there was also what appeared to be some small bruising.” This
concerned the caseworker enough to ask the foster placement to have Child evaluated, including
for sexual abuse. Although not the most severe that the caseworker had ever seen, the diaper rash
“didn’t look like it had been treated well.” Once Child was with the foster placement, the foster
mother found Child and her pajamas to be dirty and noticed that Child “reeked heavily of cigarette
13
smoke” to the point that when Child coughed or sneezed, the foster mother would smell smoke.
Although the smell from coughs or sneezes cleared up after about a day, it took five days of
washing Child’s hair two or three times a day to get the smoke smell out. The foster mother took
Child to the doctor for all this, but the doctor had no concerns. Finally, Grandmother was also at
Child’s birthday party, which Thomas attended.
Mother counters by pointing out that Child was always healthy, Mother was
attentive and caring in her care of Child pre-removal and during her visits post-removal, Mother
said she had never let Thomas be around Child and vowed never to do so, and that she had ended
her association with Father. Evidence also showed that Mother completed nearly all of the tasks
the Department set forth for her in her Family Service Plan, including completing a year of
parenting classes, which Mother testified taught her many things. Mother found and maintained a
new home, kept it clean,6 and had the financial ability to care for Child.
These matters support Mother’s arguments, but the jury was within its rights to
discount many of them and to find that they were outweighed by the other evidence we have
recounted. Other evidence showed an on-again-off-again relationship between Mother and Father
that went on for years. Although she had ended things with him shortly before trial, the jury could
have reasonably inferred that he would return to Mother’s and Child’s lives despite Mother’s
denials because of their past relationship. This inference combines with those from Mother’s
denials about Thomas, which the jury could have found not credible, to reasonably paint a picture
of a caregiver too little concerned with the two men’s histories of sexual predation of children.
And as for the state of the home environment, that Mother’s home was currently clean and
6
Except, according to a caseworker, for unsanitary conditions surrounding a pet ferret.
14
appropriate did not require that the jury ignore entirely the state of the pre-removal home, which
even Mother admitted was unsafe for children. In all, the evidence under the second, third, fourth,
seventh, eighth, and ninth Holley factors supports termination.
Under the fifth and sixth factors, there was little evidence presented of the programs
available to assist Mother, except that she undisputedly completed a year of parenting classes
required by the Department and attended numerous required therapy sessions. The caseworker
testified, however, that the therapy was not achieving all its goals because even in therapy Mother
was not confronting the danger that Thomas posed to Child and initially was denying that Father
had committed any crimes. The therapist’s notes reveal that Mother at first denied that Thomas
was around her at all but only lately admitted that he spent nights where she was staying. As for
the competing plans for Child, the Department had undertaken interstate studies on some of Child’s
relatives in Massachusetts and Connecticut as potential permanent placements. The foster mother
testified that she could serve as a placement pending something more permanent. Mother’s plans
involved her new home and her financial ability to care for Child. She had worked a demanding
work schedule leading up to trial but switched jobs just before trial to a new one that had her
work only during the day. The position does not provide health insurance, so she planned on
finding an out-of-pocket plan for Child. The evidence under the fifth and sixth factors is at best
for Mother neutral.
Despite the conflicting evidence, the evidence was sufficient for the jury to form
a firm belief or conviction that it was in Child’s best interest that Mother’s parental rights
be terminated. While Mother and her friends, her relatives in New England, and Grandmother
all recommended keeping Child with Mother, it was the combined view of the Department
15
caseworker and the guardian ad litem that Mother’s parental rights should be terminated. We
overrule Mother’s second issue.
FATHER’S SOLE APPELLATE ISSUE
Father raises only one appellate issue—that the evidence was insufficient to support
the best-interest finding against him.7 But Father has failed to preserve that issue. To preserve a
legal-sufficiency challenge to a judgment rendered on a jury verdict, a party must (1) move for an
instructed verdict, (2) move for judgment notwithstanding the verdict, (3) object to the submission
of the relevant issue to the jury, (4) move to disregard the jury’s answer to the relevant vital
fact issue, or (5) move for a new trial. B.S. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-22-00279-CV, 2022 WL 16842084, at *2 (Tex. App.—Austin Nov. 10, 2022, no pet. h.)
(mem. op.) (citing cases). And to preserve a factual-sufficiency challenge to a judgment rendered
on a jury verdict, a party must move for a new trial. Id. Nothing in the record shows that Father
properly preserved his sole appellate issue, nor does he point to anything. We thus do not reach
this issue.
7
Father does not challenge the sole statutory-predicate finding made against him, under
Subsection (E).
16
CONCLUSION
We affirm the order terminating Mother’s and Father’s parental rights to Child.
__________________________________________
Chari L. Kelly, Justice
Before Justices Baker, Kelly, and Theofanis
Affirmed
Filed: February 16, 2023
17