in the Interest of S.P., A.P., A.P., and J.P., Children ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00243-CV
___________________________
IN THE INTEREST OF S.P., A.P., A.P., AND J.P., CHILDREN
On Appeal from the 97th District Court
Montague County, Texas
Trial Court No. 2015-0340M-CV
Before Gabriel, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant A.P. (Father) appeals the trial court’s order terminating his parental
rights to his children S.P. (Sarah), A.P. (Adrianna), A.P. (Andrew), and J.P (Jackson).1
In one issue, he argues that the evidence is legally and factually insufficient to prove
that termination is in the children’s best interest. We affirm.
Background
Mother and Father’s relationship, and Sarah’s and Adrianna’s births
Father moved from California to Texas in 2005, when he was in his early
twenties. Upon his arrival, he held various jobs and lived with his parents in Lavon. At
one of his jobs, in 2009, he met J.P. (Mother). They began dating and eventually
moved in together at a house in Farmersville. After a few months of living together,
they got married. According to Father, Mother was not a good housekeeper; he
“picked up everything when [he] was there.”
Father and Mother conceived Sarah, and Mother gave birth to her in January
2011. They then conceived Adrianna, and she was born in April 2013. Before
Adrianna’s birth, Mother and Father both worked and divided the responsibility of
caring for Sarah, but according to Father, he was Sarah’s primary caretaker. Sometime
To protect the children’s privacy, we use aliases for them and for related
1
persons throughout this opinion. See Tex. Fam. Code Ann. § 109.002(d) (West Supp.
2018); Tex. R. App. P. 9.8(b)(2).
2
after Adrianna’s birth, Father and Mother agreed that Mother would stay home to be
the children’s primary caretaker while Father worked to provide for the family.
2013 CPS intervention, Andrew’s and Jackson’s births, and events in the
summer of 2015
Father obtained a job in the oil field, which required him to stay away from
home for significant periods of time. In 2013, when Adrianna was less than a year old
and Father was away from home, Child Protective Services (CPS) contacted Mother.
According to Father, Mother had taken Adrianna to a doctor when she was sick, and
when she had not followed up with the doctor as the doctor had requested, the doctor
had called CPS. Mother told Father that she “just didn’t remember” to take Adrianna
back to the doctor, and Father “got upset and started yelling at her.” When CPS
investigated, it found that the children’s home was cluttered; according to Father,
there were “toys [all] around, and there was bags of . . . chips [and] like, you know,
crumbs.” T.P. (Grandmother), Father’s mother, had visited the Farmersville home
and had noticed that it was “usually cluttered”; she later testified that Mother “wasn’t
the best housekeeper.”
A doctor diagnosed Adrianna, who was underweight, with failure to thrive.
Father later testified that Mother had told him that Adrianna’s diagnosis was
incorrect; he also averred that when CPS investigated, it had found only “dust bunnies
on [an] air filter, and that was the extent of it.” When CPS became involved with the
3
children because of Adrianna’s condition, Grandmother kept them at her house for a
short time.
Father got a new oil-field job that allowed him to take more time off and to
visit home more frequently. Because Mother believed that part of the clutter had
resulted from a too-small house, she and the children moved to a larger house in
Farmersville. When Father came home to the new house for two weeks at a time, he
helped Mother clean it.
Upon Andrew’s birth in April 2014, Father stayed at home for an extended
time and helped Mother cook and clean. Later in 2014, the family moved to a house
in Bowie, which was closer to Father’s job. Soon thereafter, because of economic
conditions in the oil and gas industry, Father lost his job. He got another full-time job,
but the job did not pay as much as his prior job, and his father began giving him
money to pay expenses. He then lost his job again, and his parents and brother helped
him pay more expenses. When Mother and Father were living in Bowie, Father’s
parents paid their rent two times and helped them pay electric bills on a couple of
occasions. Grandmother visited Mother and Father at their home in Bowie when they
moved into it, and she did not visit them there again.
Mother gave birth to Jackson in June 2015. Records from her hospital stay
recite that she had a hydrocodone dependency and that the hospital monitored
Jackson for signs of withdrawal. Shortly after Jackson’s birth, Father got a job
working on boilers in Nevada, Texas. He began living with his sister and his brother-
4
in-law in Nevada while Mother and the children stayed in Bowie. Around that time,
using a government-assistance card, Father bought a large amount of groceries that
Mother could keep in the Bowie house and use while he was gone.
According to Father, near the end of July 2015, he saw the children when they
visited the Nevada house for a birthday celebration. Father testified that when he saw
Jackson at that point, Jackson looked like he was being fed, and no one at the birthday
celebration voiced any concerns about the children’s well-being. Grandmother
attended Father’s birthday party. At the party, according to Grandmother, Jackson
appeared to be in good health; he did not appear underweight, and he was in good
spirits. To her, the other children also appeared to be happy, and Grandmother did
not notice anything abnormal.
Father visited the Bowie house on the night of September 10, 2015.2 According
to his initial testimony before an associate judge, he went there to see Mother and the
kids because his employer was planning to send him to work in Louisiana. According
to that testimony, when he arrived at the house, he went inside it; kissed the children,
who were asleep; and did not notice anything amiss—the floor was generally clean,
and the house smelled like Pine-Sol. According to this initial testimony, Father’s visit
to the Bowie house was the last time he saw the house or the children before their
2
According to his initial testimony at a bench trial before an associate judge,
this event occurred in early August 2015, days after his birthday. He later testified that
the event occurred in mid-September.
5
removal from his and Mother’s custody. In later testimony before the associate judge
and in testimony at a de novo hearing before the trial court, Father stated that when
he arrived at the Bowie house at night on September 10, he met Mother in the garage
and did not go inside the house or see the children.
In any event, while Father was at the house on that occasion, when he
attempted to hang a tire swing from a tree, he fell and broke a couple of ribs.
According to his testimony, the responding ambulance driver talked with Mother
while standing near the front door and while the front door was open, signifying that
the driver could have viewed the conditions inside the home at that time. According
to Father’s testimony, upon his release from the hospital, he returned to the Bowie
house but did not go inside, briefly spoke to Sarah but did not see any of the other
children, and left. He travled to work in Louisiana. According to him, while he lived
and worked there, he called Mother and the children each night. He testified that he
had no reason to have concerns about Mother’s or the children’s well-being at that
time.
The children’s September 2015 removal
In late September 2015, James Gibbs, a CPS investigator, received a referral
form the Bowie Police Department about conditions at the Bowie home and went
there. He saw that the children were there alone; a child told him that Mother had
gone to a doctor’s appointment. Gibbs noticed that along with the children being left
alone in the home, the home was filthy, and the children looked dirty and unhealthy.
6
Andrew was wearing a diaper that was “saturated” with urine and feces, and his penis
and testicles were “completely covered” in feces. Jackson appeared to be
malnourished and fragile; his ribs and vertebrae were visible through his skin, and to
Gibbs, he did not appear to be three to four months old. Gibbs saw prescription pill
bottles within the children’s reach in different parts of the house, and he also noticed
that the master bathroom and bedroom were flooded and had standing water within
them. CPS arranged for Jackson to go to a hospital’s emergency room. When Mother
arrived at the house, she became belligerent with the police, and she was promptly
arrested.
Upon Jackson’s arrival at the hospital, he was diagnosed with failure to thrive,
and his condition was near fatal. While Jackson was at the hospital, Gibbs took the
other children to the CPS office. According to Gibbs’s recollection, while Sarah was
at the office, she never asked about the Mother’s or Father’s whereabouts. She ate
food and asked whether she could keep some food to eat later, which Gibbs found to
be abnormal for a four-year-old child and indicative that Sarah was malnourished.
Gibbs spoke to Mother while she was in jail. She told him that she had been
depressed and that she had a prior mental health diagnosis. Mother called Father from
jail. She told him that she had left the children alone to run an errand and that when
she had returned, the police and CPS were there, and an officer had arrested her for
abandoning the children.
7
Father returned to Texas and went to the house. He noticed that the house was
filthy. He also spoke with Gibbs. According to Gibbs, Father told him that he had
seen the children about ten days before their removal. Gibbs recalled Father saying
that before Jackson’s removal, Father had noticed that he was thin, but Mother had
told him that Jackson was not eating well and that all of the children had been sick.
According to Gibbs, Father told him that the conditions of the home were
much worse than the last time he had visited Mother and the children there. Gibbs
testified that Father told him that Mother had been depressed since Jackson’s birth
and had been putting on a “mask of happiness.”3 To Gibbs, Father did not appear to
be concerned about the children’s physical well-being. More specifically, Gibbs
observed that Father lacked concern about Jackson’s physical condition. Gibbs
explained that he “would have expected [Father] to be more concerned with
[Jackson’s] size.”
A grand jury later indicted Father for offenses related to the children’s injuries.4
Father was arrested in December 2015. His charges remained pending at the time of
the trial of this case.
3
According to Father’s testimony at the de novo hearing, Mother suffered from
depression after Jackson’s birth. Before the associate judge, however, Father testified
that he did not know of any of Mother’s mental health problems.
Mother also faced criminal prosecution as a result of the circumstances leading
4
to the children’s removal, but she was not convicted because she was found to be
insane at the time of the offense. Her mental health issues required a stay in a mental
health hospital.
8
The Department’s termination petition and its temporary managing
conservatorship of the children
Following the children’s removal, the Department of Family and Protective
Services (the Department) filed a petition seeking termination of Father’s rights to the
children if their reunification with him could not be achieved.5 The Department
attached an affidavit by Gibbs to its petition. Gibbs swore that upon his arrival at the
home, he had smelled an odor of feces. He swore that he had “immediately observed”
that Jackson’s condition was “consistent with symptoms of failure to thrive”—he had
loose skin and a sunken-in face. He also swore that he had seen unsanitary or unsafe
conditions throughout the home, including that the floor of the home was “covered
in one form of trash, debris, clothes[,] or feces.”
Soon after the Department filed its petition, the trial court signed an ex parte
order naming the Department as the children’s temporary sole managing conservator.
At an October 2015 adversary hearing, 6 in conflict with his later testimony, Father
testified that he had seen the children the weekend before their removal. In an order
5
The Department also sought termination of Mother’s parental rights to the
children. Mother eventually signed affidavits in which she voluntarily relinquished her
parental rights to the children. The trial court terminated her parental rights to all of
the children, and she has not appealed.
6
See Tex. Fam. Code Ann. § 262.201 (West Supp. 2018). Gibbs and Father
testified at the hearing. Father testified that he did not know whether Mother had
abandoned or endangered the children. He testified that he was not going to “say
something to make [his] wife look bad.” Mother also testified and invoked her Fifth
Amendment right against compelled self-incrimination to most of the questions asked
of her.
9
following the adversary hearing, the trial court continued the Department’s
appointment as the children’s temporary managing conservator. In the same order,
the trial court required Father to participate in several services, including a
psychological evaluation, counseling, and parenting classes. The trial court also
ordered Father to “obtain and maintain legal employment.” Sarah Graham, a CPS
employee, became Father’s caseworker.
Father’s visits with the children, the children’s placement in foster care and
their development there, Father’s service plan, and CPS’s interactions with
Father
Following the children’s removal, Father first visited them in October 2015.
According to his testimony, the children were happy to see him, and when the visit
ended, Sarah and Adrianna screamed for him to not leave. But Father did not visit the
children consistently thereafter. From October 2015 until February 2017, Father
missed about fourteen visits with the children; in other words, he missed visits with
the children over forty percent of the occasions they were scheduled.
According to Father’s testimony, for part of the Department’s case, he did not
visit the children because he did not have an automobile or a valid driver’s license (his
license had been suspended because of unpaid tickets), and he therefore could not
drive to see them. He explained that later during the Department’s case, he missed
visits because he was sick or because of employment conflicts. Father also conceded
that he was late to visits with the children about six times; he denied that he ever left
visits early.
10
Tiffany Atwell, who eventually replaced Graham as the caseworker, explained
that there were “several times that the children were at the visit waiting for [Father] to
show up” and that Adrianna would ask whether she was going to “see[] her daddy.”
Father last visited the children in January 2017.
The children began living in foster care. They resided in multiple homes during
the case. At one point while all four children were living together, Adrianna put her
mouth on Andrew’s penis.7 Near that time, the Department split the children into two
foster homes; Sarah and Adrianna began staying together in one home while Andrew
and Jackson began staying together in another home. According to Atwell, while the
Department does not prefer to split siblings into different homes, sexual acts between
children justify doing so. Atwell noticed that the children’s behavior in foster care
improved once they were split into two homes.
According to Atwell, Sarah and Adrianna became “[v]ery bonded” with their
foster parents. During the Department’s case, Sarah received counseling because of,
in part, dreams that she had about Mother. Adrianna participated in play therapy
7
Cheryl Reeves, a case supervisor for Court Appointed Special Advocates
(CASA), became concerned about whether Adrianna had been sexually abused
because at a visitation, when Father asked her to sit on his lap, she said, “Okay, but
don’t touch my bo-bo.” Reeves never saw Father ask either of the boys to sit in his
lap. Reeves also saw that Father would often try to force Sarah to sit on his lap, which
Reeves found to be inappropriate. During a visit at a restaurant, Reeves noticed that
Sarah was uncomfortable around Father and was not affectionate toward him. Father
testified that his physical affection toward Sarah was not inappropriate and that he
was excited to see her. Other than this evidence that might raise a suspicion of sexual
abuse, we have not located evidence substantiating sexual abuse by Father against the
children.
11
during the Department’s case and took medicine to help her sleep. Andrew
progressed well in the Department’s care; he did not have developmental delays, did
not develop special needs, and did not participate in counseling. Although Jackson’s
condition when he came into the Department’s custody was poor, he improved after
his removal. He was developmentally on-target at the time of the trial before the
associate judge.
The Department filed a service plan. Father received the service plan, which
required him to participate in counseling, take a psychological evaluation, complete
parenting classes, maintain employment and suitable housing, complete a drug and
alcohol evaluation, and take drug tests upon request, among other tasks. In March
2016, CASA filed a report stating that Father had not completed any of his services.
The next month, the Department filed a document explaining that Father had quit his
full-time job and had obtained a part-time job, that he had not completed services,
and that the Department was concerned that he had not “demonstrated his
understanding of what it mean[t] to act as a protective parent to the children.”
Father attributed his lack of early success in completing services to his inability
to go to them—he did not have a valid driver’s license. He paid off his tickets and
regained his driver’s license in early 2016. He testified that after he regained a valid
license, he worked diligently on completing the services.
Samantha Kelly, a conservatorship supervisor for the Department, contacted
Father in early 2016, and he told her that he was willing to complete services. He
12
completed FOCUS8 Fatherhood, a class intended to teach fathers “the important role
that they have in their kids’ lives.” He also completed more parenting classes and
other services, and Kelly believed that he took them seriously. She later explained,
“He would speak to me about things he had learned . . . . He talked about the ways
that it helped him understand what he can and can’t control and who he can and can’t
control.” She conceded, however, that she could not assess whether Father applied
what he had learned in the classes because, in part, she never watched his visits with
the children.
Father began living with his parents. His decision to reside there resulted in
him being far away from the children’s placements. Kelly frequently visited Father
when he was living at his parents’ home, and she deemed that home as appropriate
for children. She noticed that the home was clean and prepared for the arrival of
children, and she found nothing that would present a safety concern for the children.
Kelly became concerned, however, when she learned that Father continued to
maintain contact with Mother while acknowledging the danger that she had put the
children in.9 Father was “polite and responsive” toward Kelly. They maintained
8
“FOCUS” is an acronym for “Fathers Offering Children Unfailing Support.”
9
About a year after the children’s removal, Father filed for divorce from
Mother. In January 2018, a trial court dismissed his divorce petition for want of
prosecution. Father later testified that any continued contact with Mother during the
Department’s case was upon her initiation and was unwelcome. He also testified that
during the Department’s case, he informed the Department that he was in an intimate
13
regular contact. Father never acknowledged to Kelly that he had fault in the
circumstances that led to the children’s removal.
In a June 2016 permanency report, the Department informed the trial court
that Father had completed his psychological evaluation, had finished his original
counseling sessions and had started additional counseling, and had completed
parenting classes. The Department stated, however, that Father had only sporadically
visited the children and that he had not accepted responsibility for the children’s
circumstances leading to the Department’s involvement. The Department also
informed the trial court that Father had tested negative on a random drug test.
Father’s February 2017 automobile accident, his resulting memory loss, and
the end of his interactions with the children
In February 2017, Father sustained serious injuries from a one-car automobile
accident. He testified that while driving to visit the children, he became unconscious,
drove across oncoming traffic, and slammed into a ditch. His father’s car flipped four
times, and as he was not wearing a seatbelt, he was ejected from the vehicle.
According to Atwell, Father told her that he had been speeding at ninety miles an
hour before he lost control and wrecked.
Father’s injuries resulted in his loss of consciousness for two or three days and
required him to stay in a hospital for one to two weeks. During Father’s hospital stay,
Mother spent a significant amount of time with him. Her doing so concerned Reeves
relationship with someone and that he did not want the Department to know who the
relationship was with because he did not want the Department to contact that person.
14
because Reeves was “under the impression that [Father and Mother] were not
together, and [Father] had placed the blame of the removal on [Mother].” Medical
records generated during Father’s hospital stay stated that he had been consuming
fifteen shots of liquor per week. After his release from the hospital, Father began
receiving disability benefits resulting from limitations caused by his broken back and
his broken pelvis.
According to Father, his accident resulted in significant memory loss. He
testified that part of his brain had died and that it would not “grow back.” After his
release from the hospital, Grandmother helped care for him. She noticed that the
medicines Father took “made him a different person.” She also noticed his memory
loss—he did not know who she was or who the children were for three or four weeks
following his release from the hospital. Eventually, Grandmother believed that Father
remembered her and the children,10 and he expressed to her that he missed the
children, wanted to see them, and wanted for them to come home.
About three months after the collision, Father told Kelly that he had suffered
memory loss and that he was “struggling to remember the past few months.” She
noticed that he was wearing a back brace, and he told her that he was taking several
medications to reduce pain. Father continued to miss visits with the children while
10
On cross-examination in the trial before the associate judge, Grandmother
testified that she was not aware that Father had testified earlier that he had accepted
who Grandmother was but that he did not remember her. She also testified that she
was unaware of Father’s testimony that he had limited memories of the children and
that he did not expect his memory problems to improve.
15
recovering from his injuries. He testified that after the accident, he was “cut off” from
the children—he did not see them or speak to them after that time.
Trial before the associate judge
The Department eventually changed its goal from reunifying Father with the
children to terminating his parental rights. Through a series of hearings occurring
from December 2017 through April 2018, the parties initially tried the case before an
associate judge.11
Father’s memory loss impacted his testimony. Before the associate judge, he
testified that he did not remember who Gibbs was. He acknowledged that medical
records provided that he had taken Mother to a hospital in Bowie in late July 2015,
but he testified that he did not remember doing so. He testified that he did not know
who his mother was, stating, “I’ve accepted who she is, but I don’t remember her.” At
one hearing when he was asked what month it was, he said he had no idea, and when
he was asked who the president was, he said, “Obama--Trump.”
When asked what he remembered about Jackson, Father testified, “Nothing.”
He testified that he remembered only “bits and pieces” of his interactions with the
children. He testified that his limited memories of the children were positive; the
children were “happy in them.” At one point in his testimony, he stated that he did
not recall missing visits with the children. Father testified before the associate judge
that because of his memory impairment, he did not remember Mother being his wife
See Tex. Fam. Code Ann. §§ 201.001–.018 (West 2014 & Supp. 2018).
11
16
or being in love with Mother, but he did “remember that she was a part of [his] life.”
Father’s testimony indicated that he did not know some of the children’s birthdays,
nor did he know what school grades they were in. He testified, “I don’t remember
being a father.” He said that he had not seen a physician about his memory loss.
While Grandmother’s testimony at the time of the trial before the associate
judge establishes that Father was still suffering from memory loss at that time, she
stated that his memory was much better than upon his release from the hospital.
Father asserted that his memory issues did not impair him to the point where he
could not care for the children.
When the Department’s attorney showed Father photographs of the Bowie
home’s conditions upon the children’s removal, he agreed that those conditions had
endangered the children. He also agreed that Mother should not have left the children
alone at the home. He conceded that Jackson did not look healthy upon his removal.
He also acknowledged that Andrew, whose penis was red and had feces on it at the
time of his removal, did not look healthy.
Father testified that near the time of the children’s removal, he was not living
with them because he was working out of town. He explained that at that time, he had
talked to the children every night and had sent them money. He testified that the last
time he was inside the children’s home before their removal was the beginning of
August 2015, more than a month prior. He also testified that he last saw them before
their removal in late July 2015, when they visited him for his birthday. According to
17
Father, at that time, “all the kids were fine.” Father testified before the associate judge
that he did not remember earlier testifying that he had seen the children the weekend
before their removal and that he had changed some of the children’s diapers at that
time without noticing anything that concerned him about their health. He further
averred that he did not remember previously testifying that he knew before the time
of the children’s removal that Jackson weighed less at that time than at his birth. He
indicated that his testimony at the adversary hearing was not reliable because he was
“frantic” and “hectic” at that time.12
Concerning what he should have done to avoid the children’s removal, Father
testified, “I should have brought my whole family with me [to the city where he was
working]. . . . I shouldn’t have left them there.” He testified that he did not know of
the children’s medical needs or that Mother was not meeting them because he was
“busy working. We were in the process of losing our house. . . . I was trusting
[Mother] to take care of [the children].” Before the associate judge, when Father’s
counsel asked him why he believed that he had never abandoned the children, he
testified,
Because I was . . . never intending on being gone. . . . There was never
an intention of me to just leave them. All I was doing was trying to work
and get a stable place back around our family . . . . That’s what I was
trying to do. I never intended to leave Bowie because I was trying to
leave the kids, or because I didn’t like the town, or anything like that. I
was just trying to get back home with everybody.
Later at the de novo trial, Father testified that his anxiety at the adversary
12
hearing had affected his ability to accurately recall facts.
18
Father further testified that he had always provided for the children, that he had a
strong bond with them, and that he had enjoyed spending time with them.
Father testified that he did not deserve termination of his parental rights
because the “worst thing [he] did was worry about getting bills paid and making
money.” He said that he had no idea that Mother would allow the conditions of the
home and of the children to deteriorate in the manner that they did. He testified, “I
didn’t think she was going to sit there and leave the kids alone for hours, or do
anything like that. That was not a thought in my mind.” He repeatedly testified that he
had no knowledge of the circumstances leading to the children’s removal and stated,
“I mean, when I was living with them, [Mother] always made tea, she always had
dinner ready, everything was [fine.]”
Contradicting the data in records from his hospital stay, Father testified before
the associate judge that the last time he drank alcohol was when he was nineteen years
old. He testified that he did not recall discussing drinking alcohol with anyone at the
hospital. He averred that he does not have an alcohol problem, that he has never had
one, and that he did not know why hospital records stated that he had a problem with
alcohol abuse. He conceded that he had used marijuana and methamphetamine while
he was in high school but stated that he had not used illegal drugs since then.13 S.H.
13
Father tested negative on random drug tests that Kelly administered; she
never tested Father to determine whether he had drunk alcohol.
19
(Stacy), Grandmother’s sister, testified that she saw Father on a regular basis and
never saw him with alcohol.
Regarding his future plans for the children, Father testified before the associate
judge,
I could stay living with my parents, and then I could get the kids in
there, and I would have my support group right there. I would have my
mom, [she] would leave her job, I would pick up a job that would pay a
little bit more, and then I could come home every night. I wouldn’t pick
another job that sent me away like these last ones did.
The associate judge found that the Department proved grounds for
termination and signed an order terminating Father’s parental rights to the children.
Father filed a request for a de novo trial before the trial court.14
Trial de novo
At the de novo trial, Father again testified that the last time he saw all of the
children before their removal was at the beginning of August 2015, a month before
their removal. Before the trial court, Father testified that when he visited home in
September 2015, about two weeks before the children’s removal, he saw Mother when
he attempted to install a swing on a tree. After he saw her, but without seeing the
children and while attempting to surprise them, he climbed the tree, fell from it,
sustained injuries, and went to the hospital. According to Father’s testimony at the
de novo trial, on that occasion, he never went inside the house, so he did not smell
any odor emanating from inside the house. He looked inside the living room, but it
See Tex. Fam. Code Ann. § 201.015.
14
20
“wasn’t that bad” and was not representative of the conditions that Gibbs found two
weeks later. According to Father, after his release from the hospital, he did not go into
the house, and although he saw Sarah, he did not see the other children.15 After the
day he saw Sarah, Father did not see any of the children again until October 2015, at
his first visitation after their removal. Father recognized that his testimony regarding
some of these matters at the de novo hearing conflicted with his testimony before the
associate judge. He also recognized that the testimony conflicted with his testimony at
the adversary hearing, when he said that he saw all of the children the weekend before
their removal.
Father testified before the trial court that his automobile collision had impacted
his memory but that his memory was improving. He said, “I’m starting to remember
memories from when I was a child and up through recently. . . . I understand my
memories now. I actually remember them . . . .” Father testified that at the time of the
de novo hearing, he was seeing a psychiatrist for issues related to his memory loss,
and he opined that he remembered between ninety and one hundred percent of pre-
accident facts.
Father acknowledged that he was receiving over $1,000 in disability benefits,
which he used to make a car payment and to pay rent to his parents, among other
expenses. But he averred that he was ready for employment and that physically and
At one hearing in front of the associate judge, Father testified that he had
15
“talked to the kids” when he had visited the house to hang the swing.
21
mentally, he was prepared to support and manage four children. Father acknowledged
that he had a history of battling anxiety, but he testified that as of the time of the
de novo hearing, his anxiety issues had been resolved. He described anxiety as a
“worthless emotion.”
After reviewing the evidence admitted before the associate judge and after
considering new evidence, the trial court likewise found that the Department had
proved statutory grounds for termination16 and that termination was in the children’s
best interest, and the court terminated Father’s parental rights. Father brought this
appeal.
The Trial Court’s Best-Interest Finding
In his only issue on appeal, Father contends that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of his
parental rights is in the children’s best interest.
Standard of review and applicable law
When the State seeks to sever 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
16
The court found that Father had knowingly placed the children in conditions
or surroundings that endangered their physical or emotional well-being, had engaged
in conduct or knowingly placed the children with persons who engaged in conduct
that endangered the children’s physical or emotional well-being, had constructively
abandoned the children, and had failed to comply with provisions of a court order
that established acts necessary for him to obtain the children’s return after they had
been removed for abuse or neglect. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E),
(N), (O) (West Supp. 2018). Father does not challenge these findings.
22
(Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). Thus, we strictly scrutinize termination proceedings in favor of the parent.
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55.
Termination decisions must be supported by clear and convincing evidence.
See Tex. Fam. Code Ann. §§ 161.001(b), .206(a) (West 2014); E.N.C., 384 S.W.3d at
802. 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 (West 2014); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the Department must
establish by clear and convincing evidence that the parent’s actions satisfy one ground
listed in family code section 161.001(b)(1) and that termination is in the best interest
of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803.
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 the challenged ground for
termination. 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. Id. We resolve any disputed
facts in favor of the finding if a reasonable factfinder could have done so. Id. We
23
disregard all evidence that a reasonable factfinder could have disbelieved. 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.We cannot weigh witness credibility issues that depend on the appearance and
demeanor of the witnesses because that is the factfinder’s province. Id. When
credibility issues appear in the appellate record, we defer to the factfinder’s
determinations as long as they are not unreasonable. Id. The factfinder is free to
accept or reject all or part of the testimony of any witness. See In re L.B., No. 10-17-
00279-CV, 2018 WL 1415736, at *2 (Tex. App.—Waco Mar. 21, 2018, pet. denied)
(mem. op) (citing In re C.E.S., 400 S.W.3d 187, 195 (Tex. App.—El Paso 2013, no
pet.)).
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination of
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 of the challenged grounds for termination.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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
24
conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
We review the entire record to determine the child’s best interest. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). We generally presume 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).
Nonexclusive factors that a factfinder may use in determining the best interest of the
child include the desires of the child, the emotional and physical needs of the child
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 best interest of the child, the plans for the
child by these individuals or by the agency seeking custody, the stability of the home
or proposed placement, the acts or omissions of the parent which may indicate that
the existing parent-child relationship is not a proper one, and any excuse for the acts
or omissions of the parent. 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”).
Father’s acts and omissions that reflect on his parental abilities and his ability
to meet the children’s needs and to provide them with stability
Much of the evidence presented in the trial court concerned the conditions of
the children and of their home upon removal and whether Father bore responsibility
for those conditions. On appeal, Father states that the children’s removal was caused
25
by Mother leaving them “unattended and in poor physical and living conditions.” He
asserts that he was working out of town, that he knew nothing about the conditions,
and that his “wife failed to [properly] care and provide for [the] children.”17
The trial court, however, could have rationally found that Father, through his
acts or failures to act, bore fault in the conditions that endangered the children and
that threatened Jackson’s life. In Father’s initial testimony about the events leading to
the children’s removal, which he gave prior to his car accident resulting in memory
loss, he stated that he saw the children the weekend before their removal. He later
testified that he last saw them at the beginning of August 2015, almost two months
before their removal. The trial court had the authority to accept Father’s initial
testimony and Gibbs’s recollection that Father told him he had seen the children
recently before their removal and reject Father’s later, contradicting testimony. 18 See
L.B., 2018 WL 1415736, at *2. If it did so, the trial court could have reasonably found
that Father should have taken some action to address Jackson’s health. Upon his
17
Similar to Father’s assertions on appeal, Reeves overheard a conversation in
which Father said that he had no responsibility for the circumstances leading to the
children’s removal because he had been out of town and had been unaware of the
conditions of the children or their home. Reeves averred that Father “basically laid the
blame . . . on [Mother].”
18
When the children’s attorney ad litem asked Father how the court was
supposed to resolve the conflicts in his testimony and discern the truth, he responded,
“I don’t know.”
26
removal a week later, Jackson was patently malnourished; 19 he weighed less than eight
pounds (after weighing between seven and eight pounds upon his birth months
earlier), his ribs and vertebrae were visible, he had sunken eyes, and he did not look
his nearly-four-month age. His condition required hospitalization; he was diagnosed
with failure to thrive, and it was nearly fatal. A doctor wrote a note stating that he
deemed Jackson’s return to the “environment he was in” unsafe and that Jackson was
in a “life and death situation.” Father testified that he never noticed that Jackson was
losing weight after his birth. But the trial court could have reasonably found that
Father should have been more active in monitoring Jackson’s condition given
Adrianna’s prior diagnosis of failure to thrive.20 CPS also arranged for Andrew and
Adrianna to have medical evaluations after their removal. Records from those
evaluations state that Andrew had been neglected and that he “grabbed for [a] bottle
urgently” and that Adrianna grabbed food out of a nurse’s hand. From this evidence,
the trial court could have reasonably determined that Father bore fault in failing to
notice or to remedy the children’s deteriorating conditions.
19
Medical records state that Jackson was “EXTREMELY EMACIATED” and
“very frail” upon admission and was still at his birth weight. His treatment plan
included “AGGRESSIVE FEEDING.” The records further state that at the hospital,
Jackson gained weight, including gaining ten ounces on his last night in the hospital,
and became more interactive.
Medical records related to that diagnosis state that Adrianna appeared
20
“wasted.”
27
Further, Father testified before the associate judge and before the trial court
that he had traveled to the Bowie home on September 10, 2015, two weeks before the
children’s removal. Although Father testified before the associate judge that he had
met Mother in the garage, had smoked cigarettes with her there, and did not recall
entering the house, the trial court could have reasonably doubted that testimony. 21
Further, the trial court could have reasonably held Father responsible for the
endangering conditions of the home given that CPS had previously intervened
because of, in part, the children’s cluttered home. Because of Father’s admitted
presence at the home two weeks before the children’s removal and because of his
knowledge that Mother had a history of failing to maintain a clean home in his
absence, the trial court could have reasonably found that he had responsibility to
prevent or remedy the conditions of the home that Gibbs discovered in September
2015.
In his testimony, Father attributed some of the conditions of the home upon
the children’s removal to a family dog that normally stayed outside but had been let
into the house. Near the time of a visit with Sarah, he wrote, “She told me that it was
all her fault. It was all her fault for letting the dog in when [Mother] left.” But Gibbs
The Department urged the trial court to reject Father’s testimony that he did
21
not enter the house, arguing in the de novo hearing: “[Father] wants this Court to
believe that this great father [who] hasn’t seen . . . his children in a month . . . doesn’t
see the children, he just goes and builds a swing, even though his first story to the
child protection court was I saw all of the children and I went in the house.”
28
testified that he did not recall the presence of a dog at the house or the children
talking about a dog when he went to the house at the time of the children’s removal.
Longer before the events leading to the children’s removal, Father did not
appear to prioritize his involvement in their medical care or his awareness of the
circumstances leading to that care. For example, medical records from Jackson’s birth
show that he remained in the hospital after Mother’s discharge because she had used
opiates during her pregnancy, and Jackson needed monitoring for possible
withdrawal. But at the trial before the trial court, when Father claimed he had
regained much of his memory, he denied that upon Jackson’s birth, Jackson had an
extended stay in the hospital because of possible opiate withdrawal. Similarly, before
the associate judge, Father testified that he did not remember being told that the
hospital was delaying Jackson’s release because of the drug withdrawal, but he said
that if the hospital records indicated such a delay for that reason, he did not “know
how [he] could debate that.” Further, at one point, Father testified that he only took
one child—Sarah—to the doctor on one occasion; he never took any of the other
children to the doctor. Later in the same hearing, he testified that he took Adrianna to
the doctor on a few occasions but that he did not take the children to the doctor
regularly because he “was typically working.”
Next, the trial court could have relied on Father’s acts and omissions following
the children’s removal to determine that he lacked abilities to properly parent them, to
meet their needs, and to provide them stability. As explained above, Father missed
29
many visits with the children and was late to others. And the trial court could have
further found from the visits Father attended that he lacked the abilities to properly
parent the children and to provide for them. For example, Atwell testified that notes
she received from Father’s visits with the children indicated that he had raised his
voice at them frequently. She explained that when she had asked Father whether he
had raised his voice at the children, he had said, “I guess trying to get four children to
listen can be overwhelming.” Atwell further explained,
I observed several visits where he would become frustrated with, mainly
[Sarah] and [Adrianna], because they [were] mobile. You know, they
would kind of like to hang on him, are super excited to see him, and he
would . . . raise his voice at them and tell them to stop and get down
....
Atwell also stated that Father did not give equal time to the children; he spent more
time with Sarah and had a deeper relationship with her as compared to the other
children.
From the time that Atwell became the children’s caseworker, Father did not
send letters or cards to the children, and he requested to speak with the children by
phone only once. Atwell testified that during several phone calls she had with Father
between March 2017 and October 2017, he never asked how the children were doing,
never asked for photographs of the children, and never asked to see them.
Reeves watched many of Father’s visits with the children after their removal;
she also observed that he did not attend many of the visits that the Department set up
for him and that he left early or arrived late at other visits. On the visits that Father
30
attended, Reeves noticed that Father generally acted within the visitation rules but that
he did not always interact with all four children, that he interacted with the girls more
than the boys, and that he did not appear to bond with all the children. Reeves
explained that several times in visitation, “it seemed more like going through the
motions[ and] that [Father] wasn’t fully engaged with the children.” Reeves also
noticed that “a couple of times[, Father] seemed like he was going to lose his temper”
with the children.
Finally, the trial court received conflicting evidence concerning whether Father
has a problem with alcohol abuse. His medical records from his auto accident state
that he does. They show that he was placed on a protocol related to alcohol
withdrawal and that he had a history of alcoholism. One record states that he drank
alcohol every week. Another record states that along with smoking a pack of
cigarettes a day, he drank fifteen shots of liquor per week. Consistent with these
medical-record references, the record of the trial before the associate judge contains
references to a psychological evaluation in which Father told the examiner that after
he lost a job in the oil field, he drank vodka to help him sleep. Father testified that he
and Mother used “Bud Light” as a code word to describe money that Mother’s family
was giving to him to bail her out. He also testified that he used “vodka” as a slang
word for money.
Nonetheless, Father denied having a history of alcohol abuse and testified that
he last drank alcohol when he was nineteen years old. Before the trial court, he
31
appeared to blame Mother for the references relating to his alcohol use in his medical
records. Bob Robinson, a former pastor who manages the ten-week FOCUS
Fatherhood program that CPS contracts with, testified that Father did not discuss any
substance-abuse issues during his FOCUS Fatherhood classes, but he also testified
that he could not “discount[] the fact that some people can hide their addiction[s].”
Kelly testified that when she visited Father’s parents’ house, she never found alcohol.
She stated that she was never concerned about Father drinking alcohol. But Kelly
testified that if she had known about the references to Father’s alcohol consumption
in his medical records, she would have changed how carefully she would have
searched for alcohol in his parents’ home. She also acknowledged that “there are
people who are good at hiding things.” Clinton Bratcher, a hospital chaplain and
Father’s former pastor, testified that Father never disclosed a substance-abuse issue to
him and that Bratcher was certain that Father would have disclosed such an issue if
one had existed.
If the trial court credited the evidence in Father’s medical records relating to his
consumption of alcohol and discredited the contradicting evidence, including his
testimony, it could have rationally considered his alcohol abuse in its best-interest
determination. Reeves testified that if Father had a problem abusing alcohol and never
disclosed the problem during the case, she would be concerned because “a child could
be returned to a parent with a current alcohol problem who is not seeking treatment.
And parents under the influence of substances tend to be neglectful.” She further
32
testified, “It’s very concerning that [the alcohol abuse] would have stayed hidden[.] . . .
[W]hen children come into care, the parents are offered certain services that the
Department is willing to pay for. Counseling, if there is an issue with substance abuse,
they are offered help with that, too. So not seeking that would be very concerning.”
From all of this evidence relating to facts before and after the children’s
removal, the trial court could have reasonably determined that Father had endangered
the children, had failed to prioritize them, that he was not nurturing to them, and that
he lacked abilities to properly parent them and to provide for their physical and
emotional needs. See Holley, 544 S.W.3d at 372.
Programs that were available to Father and whether he benefited from them
The Department offered services to Father that were designed to assist in
reuniting him with the children. Although the trial court received evidence showing
that Father completed many technical requirements of these services, the court also
received evidence showing that he failed to complete some services and that he failed
to apply lessons that he learned in services he completed.
At trial before the associate judge, the Department, through Atwell’s testimony
among other evidence, took the position that Father had not complied with the
service plan in the sense that he had not demonstrated behaviors consistent with what
he had learned in classes or consistent with recommendations from service providers.
For example, the service plan required Father to maintain a safe, stable, and suitable
home for the children. Atwell testified that Father had failed to meet this requirement
33
because for much of the case, he had lived with his parents, whom the Department
did not consider appropriate caregivers for the children.22 Next, the service plan
required Father to compete a budget; Atwell testified that he never did so. The service
plan also required Father to maintain income capable of supporting his children;
Atwell testified that he did not do so because, in part, he quit his job to complete
other requirements of the service plan.23 Atwell testified that the service plan required
Father to inform the Department about changes of his address within three days of
the changes and that he had not done so. Finally, Atwell testified that although Father
had completed parenting classes, he had not demonstrated the knowledge that he
gained through those classes during his visits with the children, as indicated from the
visitation facts summarized above.24
Although Reeves acknowledged that Father eventually completed services, she
expressed concern about his minimal progress on the services toward the beginning
of the Department’s case, stating, “[W]hen services haven’t been completed and the
case has been going on for six months, that is concerning . . . because it does not
22
Atwell explained that the Department conducted a home study on Father’s
parents and that following the home study, the Department disapproved of the
children residing there. We have not located evidence establishing why the
Department disapproved of the children residing with Father’s parents.
23
Reeves testified that in many cases she worked on while at CASA, a parent
was able to complete services while maintaining a full-time job.
24
Kelly testified that a parent’s interaction with a child shows how well the
parent is able to apply lessons taught in parenting classes. She explained that she had
never observed any of Father’s visits with the children.
34
indicate that the parent is motivated enough to get [his] child back to have made the
necessary appointments and steps . . . .” Reeves testified that when the Department
assigned the services to Father, the Department informed him to “complete them as
soon as possible.” She also expressed concern that Father lacked stable housing and
consistent employment during the Department’s case. Finally, she expressed concern
that although Father had completed counseling and parenting classes, he had never
accepted responsibility for the conditions leading to the children’s removal and had
never shown remorse about them.
Robinson testified that Father graduated from the FOCUS Fatherhood
program in 2016. He described Father as an “outstanding student.” He testified that
Father was “very thoughtful in his paperwork,” attended every session, and was active
in discussions. Robinson opined that Father “seemed to be grasping what we were
teaching.” During his testimony, Robinson discussed several documents that Father
completed during classes and explained how they indicated Father’s thoughtful,
serious, and meaningful participation in the program. Robinson testified, “It was
pretty clear that he was internalizing [the] material . . . .” He explained, “I . . . saw that
he took to heart some of these tools . . . and that he really was sincere in his
willingness to be the kind of father [the children] need him to be.”
Robinson conceded, however, the he could not opine about whether Father
would raise the children according to the lessons he had learned in the program, and
Robinson testified that he had no insight about how Father had used the tools learned
35
in the program during visits with the children. He also acknowledged that he could
not recall Father revealing the circumstances leading to the children’s removal. When
the Department’s attorney showed Robinson photographs of the children’s home
upon their removal, he acknowledged that the photographs were appalling. Robinson
also admitted that Father’s change of testimony about when he last saw the children
before their removal indicated that he may not have been taking responsibility for
their removal.
Balancing this evidence, the trial court could have rationally determined that
Father’s technical compliance with parts of his service plan did not weigh in favor of
returning the children to his care because he failed to comply with other parts of the
service plan and because he did not demonstrate that he had benefited from the
services. And the trial court could have likewise determined that the children’s best
interest would not support delaying the provision of a permanent home for the
children while Father engaged in further services intended to assist his reunification
with them. See id.; see also In re A.B., 412 S.W.3d 588, 601 (Tex. App.—Fort Worth
2013) (en banc op. on reh’g) (explaining that “[p]rompt and permanent placement of
the child in a safe environment is . . . presumed to be in the child’s best interest”),
aff’d, 437 S.W.3d 498 (Tex. 2014).
36
The children’s desires, Father’s and the Department’s plans for them, and the
stability of the Department’s proposed placements
The Department’s plan for the children upon termination of Father’s rights was
to allow them to be adopted by their foster families. Reeves testified that the children
were thriving in their foster placements. She testified that they enjoyed the
environments where they were living and that they were bonded with their foster
families. Jackson, who had previously been diagnosed with failure to thrive, regained
health with his foster family; Reeves saw him playing, running, and talking. Sarah, who
had a withdrawn and quiet demeanor upon removal, became a “giggly, bubbly girl”
and grew physically. Adrianna, who was “barely talking” at the time of the removal,
blossomed and became outgoing in her foster placement. The girls told Reeves that
they wanted to permanently stay with their foster parents, to whom they referred as
“mommy and daddy.” According to Reeves, although the boys and girls live with
separate foster families, their foster families provide opportunities for all four children
to see each other. Reeves opined that termination of Father’s rights was in the
children’s best interest.
Atwell explained that each foster home wanted to adopt the children who lived
there. She said that the four children saw each other regularly and that she did not
have any reason to believe that they would stop doing so. Neither Sarah nor Adrianna
ever told Atwell that they wanted to return to Father’s or Mother’s care. Atwell
37
expressed her belief that although Sarah remembered Father, the other three children
did not.
When the Department’s attorney asked Father about his plans for the children
if the court returned them to him, he said that he planned to take part-time courses in
endocrinology “or something of that nature,” work to support the children, and have
them live with him and his parents (at his parents’ house) and “be happy.” He said
that if the children lived at his parents’ house, Grandmother would quit her job—an
office manager for a dentist—so that she could supervise the children when Father
was away. He testified that he enjoyed spending time with his children, including
taking them on outdoor excursions, and that he wanted them back.
Grandmother resides in a two-story, 2700 square-feet, four-bedroom home.
She testified that she has an excellent relationship with the children and that she loves
them. She explained that she had watched them often at her house over weekends
while Mother and Father worked and that she and Father’s father had taken care of
them “very well.”
Grandmother testified that if the children lived with her, she would keep her
house clean and provide for their needs, including food. She stated that if the children
lived with her, she would ensure that they would not be endangered. When Father’s
attorney asked Grandmother why the trial court’s return of the children to Father’s
care so that they could live in her home would be in their best interest, she replied,
38
“Because we’re family. . . . Because we stick together. . . . My life is not complete
without them.”
The trial court, however, could have reasonably found that allowing the
children to live with Grandmother would not support their best interest. Like Father,
Grandmother declined to hold Father fully responsible for the conditions leading to
the children’s removal, testifying that she did not because he “wasn’t there.” The trial
court could have also found that Grandmother would not be a proper placement for
the children because she had failed to notice and address the children’s conditions
leading to their removal. Grandmother testified that on occasions when she went to
the children’s residences before their removal (she visited the Bowie home only once),
she did not see anything that concerned her. But she recognized that when she went
to the Bowie house after the removal, it was “[e]xtremely filthy.” According to
Grandmother, during the times when the children were in her possession, she never
found a reason to believe that Mother and Father were not adequately providing for
them. But as explained above, two of Father’s children were diagnosed with failure to
thrive, and their conditions upon removal evidenced an apparent lack of provision
and care. When Grandmother viewed the photographs of the children and of their
home upon their removal, she agreed that they had been endangered and that Jackson
had been abused or neglected.
Weighing all of this evidence, the trial court could have rationally found that
the children’s future well-being if returned to Father’s custody and placed in
39
Grandmother’s home was uncertain and that the children’s best interest favored
keeping them in their foster homes, where they had bonded with their foster parents,
had thrived, had their emotional and physical needs met, and had opportunities for
permanency and stability through adoption. See Holley, 544 S.W.2d at 372. The trial
court could have reasonably given weight to the evidence that Sarah and Adrianna
desired to remain with their foster parents and that returning Andrew and Jackson to
Father’s care would have taken them away from foster parents, with whom they were
bonded, to place them with Father, with whom they had developed a limited and
distant relationship. See id.; In re J.P., No. 02-18-00117-CV, 2018 WL 3763923, at *4
(Tex. App.—Fort Worth Aug. 9, 2018, no pet.) (mem. op.) (affirming a trial court’s
finding that termination was in children’s best interest when the evidence “showed a
strong bond among the foster family, John, and Jackson and a comparatively weak
bond between the children and Mother”).
Witnesses’ recommendations
Several witnesses who had no direct interest in the children’s placement
provided recommendations about the propriety of termination of Father’s parental
rights. Navauda Miller, a CASA supervisor, testified that based on her conversations
and her consideration of the facts of the case, she believed that the children’s best
interests supported termination of Father’s parental rights. She testified that based on
her review of the testimony and exhibits, Father’s custody of the children would
40
significantly impair their physical and emotional well-being. Miller based her opinions
in part on Father’s memory issues, stating,
Well, . . . there’s counseling appointments that need to be kept up with,
of course, there’s school and school activities, and getting them where
they need to go, which only gets more complicated as they get older, and
then just, like, I mean, if he can’t even remember what day it is, like, how
is he going to know where they’re supposed to be and what they’re
supposed to be doing.
....
. . . [I]f you can’t tell what’s true from day to day, I mean, again
what happens, especially as they get older and you’re trying to keep up,
you know, you’re trying to parent kids that, Lord knows, especially when
they get to be teenagers, you need to remember what they’ve told you.
Atwell likewise expressed concern about Father’s memory loss. She testified,
If you can’t remember what month it is or what year it is, how are you
going to remember appointments for four children, getting them to
school on time, or counseling appointments, medical/dental
appointments?
....
. . . [I]f you don’t know if something happened, or if something
happened or didn’t happen, say with maybe family members, how are
you going to know they’re protected if you don’t remember them?
Reeves, a CASA supervisor, supported termination of Father’s parental rights,
basing her recommendation on “pictures . . . of the condition of the home and the
children, the condition of the children themselves at the time of removal, and then the
[cumulation] of interactions that [she] saw with both [Father] and the foster parents,
both sets of foster parents.” The children’s attorney ad litem likewise supported
termination of Father’s parental rights, stating in part,
41
When we talk about the emotional and physical needs of the
children, not just now but in the future, we don’t know what that’s going
to bring. With all of the information that’s in the record, not just the
written records, but the prior testimony and then testimony before this
Court, there are going to be a lot of stressors with four children.
And one of the things that we could also be concerned about is
what is going on with the children not just now, but later, later on. I do
believe that while they are not in any imminent danger, [Father’s]
parenting abilities would be absolutely stretched to the maximum. . . .
....
. . . And everything would be brand-new to [Father] even with the
help of his folks.
When we start talking about the stability, while I do believe that
[Father] does have support, at some point, these are his children and he
is responsible for them. I believe that history has repeated itself more
than once in regard to . . . [Father] and that also contributes to our
position in regard to the children.
Bratcher, Father’s former pastor, testified on Father’s behalf. He explained that
at some point before the children’s removal, he had visited their home and had seen
that while the home was not pristine, it was not a “filthy mess.” Bratcher described
Father as a good and faithful friend. He testified that he and Father had conversations
about theology, Father’s spiritual life, and relationships. He explained that Father had
a good relationship with his children and used humor and a “wonderful wit” in his
interaction with them. Bratcher testified that the children loved Father and that he
was attentive to them. Bratcher saw Father discipline the children verbally.
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Bratcher also testified that Grandmother is “the ultimate mom. She’s loving
and caring and takes care of her kids, even when they’re grown.” He supported
allowing the children to live with Father at Grandmother’s home, explaining,
[O]ne of [Father’s] greatest strengths is his family. They stick together,
work together as a team through just about everything that’s ever come
their way, and it’s not always been good. There’s been adversity, and they
work together. And I think one of the strongest points is the fact that he
would have them in that home.
....
. . . I believe the children belong with their family, so there will be
an unbroken line, hopefully. And they want it because they are family.
This is what [Father’s family does]; they take care of family. And I’ve
never heard anything other than, “We want our family, including the
kids, together.” They make sacrifices, they work together on it, and
they’re making plans that I consider to be wise plans.
On cross-examination by the Department’s attorney, Bratcher admitted that he
was unaware of details of CPS’s involvement with Father’s children, including the
diagnoses of failure to thrive with respect to Adrianna and Jackson. Bratcher testified
that he was shocked when he saw news reports about the removal of the children and
their condition upon the removal. But he testified that he did not believe that Father
“knowingly would have allowed his children to be in [those] condition[s].”
Stacy, Grandmother’s sister, testified that Father was loving, that he had a “big
heart,” and that the children loved him. Stacy never saw Father abuse the children in
any way. When she saw the children, they were clean and appeared to be well-
nourished; she conceded, however, that she had never visited the children’s home.
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She testified, “I feel that [Father] is a good father. He loves his children. This is not
on him. . . . He was not at home when this was all happening.” But Stacy conceded
that she never asked Father about the events leading to the children’s removal, and
she stated that she should have asked. Stacy also acknowledged that she was not aware
of the 2013 CPS investigation or of Adrianna’s diagnosis with failure to thrive.
We conclude that the trial court could have rationally accepted the
recommendations of the children’s attorney ad litem, CASA workers, and the
Department’s representatives over the recommendations of Father’s family and his
former pastor, who largely declined to acknowledge Father’s responsibility for the
children’s endangerment and who were less aware of the facts leading to the removal
of the children from Father’s custody. See, e.g., In re C.K., No. 04-18-00374-CV, 2018
WL 4903047, at *4 (Tex. App.—San Antonio Oct. 10, 2018, pet. denied) (mem. op.)
(relying on recommendations of the Department, the children’s ad litem, and a CASA
volunteer); In re A.C., No. 02-16-00325-CV, 2017 WL 817153, at *6 (Tex. App.—Fort
Worth Mar. 2, 2017, no pet.) (mem. op.) (stating that a trial court may rely on an
attorney ad litem’s best-interest recommendation).
Summation
For all of these reasons, we conclude that the trial court, in considering all of
the evidence recited above along with the remaining evidence in the record, could
have rationally reached a firm conviction or belief that termination of Father’s
parental rights to the children was in their best interest. See Tex. Fam. Code Ann.
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§ 161.001(b)(2). We therefore hold that the evidence is legally and factually sufficient
to prove by clear and convincing evidence that termination of Father’s parental rights
is in the children’s best interest, and we overrule Father’s sole issue. See id.; J.P.B., 180
S.W.3d at 573; C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d at 371–72.
Conclusion
Having overruled Father’s only issue, we affirm the trial court’s judgment
terminating his parental rights to Sarah, Adrianna, Andrew, and Jackson.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: December 13, 2018
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