in the Interest of G.R. and T.R. ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00513-CV
_________________
IN THE INTEREST OF G.R. AND T.R.
________________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 13-10-10830 CV
________________________________________________________________________
MEMORANDUM OPINION
Appellant (the Father) appeals the trial court’s order terminating his parental
rights to G.R. and T.R. 1 The Father raises four issues on appeal. In his first three
issues, he challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that he violated subsections (D), (E), and (O) of section
161.001(1) of the Family Code. In his fourth issue, he challenges the legal and
factual sufficiency of the evidence to support the trial court’s finding that
1
To protect the identity of the minors, we have not used the names of the
children, parents, or other family members. See Tex. R. App. P. 9.8.
1
termination was in the children’s best interest. We affirm the trial court’s
judgment. 2
Burden of Proof and Standards of Review
Parental rights can be terminated upon proof by clear and convincing
evidence that the parent has committed an act prohibited by section 161.001(1) of
the Family Code, and termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(1), (2) (West 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Due to the severity and
permanency of the termination of parental rights, the burden of proof is heightened
to the clear and convincing evidence standard. See Tex. Fam. Code Ann. §
161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). “Clear and convincing
evidence” means “the 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 Ann. § 101.007 (West 2014). This is an
intermediate standard and falls between the preponderance standard of ordinary
civil proceedings and the reasonable doubt standard in criminal proceedings. State
v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34 S.W.3d 625, 630
2
G.R. and T.R.’s mother (the Mother) signed an affidavit voluntarily
relinquishing her rights to G.R. and T.R. The trial court accepted the Mother’s
affidavit and terminated the Mother’s parental rights to G.R. and T.R. The Mother
has not appealed that determination.
2
(Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g). Therefore, the proof
must be more than merely the greater weight of the credible evidence, but need not
be unequivocal or undisputed. Addington, 588 S.W.2d at 570. This heightened
burden of proof results in a heightened standard of review. In re J.F.C., 96 S.W.3d
at 265-66.
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
96 S.W.3d at 266. We assume the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so, and we disregard all evidence that a
reasonable factfinder could have disbelieved. In re J.O.A., 283 S.W.3d at 344; In
re J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence in a parental termination
case, we “give due consideration to evidence that the factfinder could reasonably
have found to be clear and convincing.” In re J.F.C., 96 S.W.3d at 266. We must
determine “‘whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the State’s allegations.’” Id. (quoting In
re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “If, in light of the entire record, the
3
disputed evidence that a reasonable factfinder could not have credited in favor of
the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction, then the evidence is factually insufficient.” Id. We give
due deference to the factfinder’s findings and we cannot substitute our own
judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006). The factfinder is the sole arbiter when assessing the credibility and
demeanor of witnesses. Id. at 109.
Factual and Procedural Background
The Department of Family and Protective Services (the Department) first
became involved in this case when it received multiple allegations of sexual abuse
and drug abuse in the home of G.R. and T.R. At the time of trial, G.R. was six
years old and T.R. was four years old. In response to the allegations, Child
Protective Services (CPS) assigned Crystal Houts to investigate the allegations.
Houts testified that G.R. reported observing domestic violence between the Mother
and the Father—G.R. recalled seeing the Father throw the Mother down a flight of
stairs.
Houts’ investigation resulted in a finding that CPS had reason to believe the
Mother had engaged in physical abuse and neglectful supervision. Because Houts
4
believed G.R. and T.R. were in conditions that endangered them, she removed
them from the Mother’s home.
Houts also investigated an allegation that the Father had sexually abused the
Father’s stepdaughter, I.K. Houts was unable to locate the Father during her
investigation to speak to him about this allegation. Houts testified that her
investigation led her to believe that I.K. made a valid outcry of sexual abuse
against the Father, describing vaginal penetration. However, based on the
information available during her investigation and the fact that she had been unable
to locate and speak to the Father, the Department ultimately found it was unable to
determine whether sexual abuse had actually occurred.
Houts testified that she found the Mother to be very inconsistent in her
reporting to the Department. Houts explained that she spoke to the Mother several
times about whether the Mother believed the Father hurt I.K., and the Mother
provided multiple different responses. Notwithstanding the Mother’s apparent
dishonesty, Houts testified that Houts believed I.K.’s outcry to be credible. Houts
testified there remains an ongoing criminal investigation of the Father concerning
his alleged sexual abuse of I.K.
The Mother testified that she and the Father separated in December of 2012
when the Father became intoxicated and tried to wrap his hands around her neck
5
and kill her. The Mother testified that there had been other incidents of domestic
violence. The Mother testified that the Father not only abused her, but also
physically abused the children. She testified she came home multiple times to find
bruises on the children. She testified that the Father was a “spanker” and would use
his hands, a belt, a shoe, or anything else he could get his hands on to spank the
children. The Mother was of the opinion that the Father would continue this
behavior if he were granted custody of them. The Mother denied that she
personally used corporal punishment on the children, denied that she assaulted the
Father, and denied that she had a bad temper. When questioned about bruising that
appeared on the children after the Father had left the home, the Mother testified
that her babysitter had caused those bruises. The Mother did not let the Father see
the children from December 23, 2012 to the time CPS removed G.R. and T.R. from
her on October 7, 2013.
The Mother admitted to taking pills while caring for the children and
testified that the Father also knew she was taking pills. The Mother testified that
while she was struggling with drug abuse, the children were in a dangerous
environment. According to the Mother, the Father never tried to remove the
children from her because of her drug problem.
6
The Mother testified that the Father drank one or two beers a night and
smoked marijuana daily. According to the Mother, the Father has driven under the
influence many times with the children in the car. She explained that the Father
smoked marijuana throughout the day, so there was rarely a time when he was not
“stoned.” The Mother testified that the Father smoked marijuana even when he was
in charge of taking care of the children. The Mother was of the opinion that the
Father endangered the children.
The Mother testified that the Father did not maintain stable employment
while they were married. It was her opinion that if the court returns G.R. and T.R.
to the Father, he would not meet their physical and emotional needs.
According to the Mother, more than nine months after she separated from
the Father, I.K. told the Mother that the Father had sexually abused I.K. The
Mother testified that I.K. told her that the Father had warned I.K. not to tell anyone
about the abuse or the Father would kill the Mother and the other children. The
Mother testified that I.K. acted out sexually towards her younger siblings due to
the abuse she had endured from the Father. The Mother testified that she accused
the Father of sexually molesting her daughter, I.K., because I.K. told her it had
happened and she found I.K.’s statements credible. The Mother felt that it would
be in G.R. and T.R.’s best interest to terminate the Father’s parental rights.
7
I.K.’s biological father testified that he observed I.K. acting out sexually
towards other children. He testified that I.K.’s schoolteacher had also observed her
acting out sexually at school and had called CPS. According to I.K.’s biological
father, when he asked I.K. why she was doing these things, I.K. told him that the
Father had inappropriately touched her.
The CPS caseworker assigned to G.R. and T.R. testified that she prepared a
service plan for the Father. When she prepared the plan in mid-October or
November, the Father was not available to the Department and he did not resurface
until February or March of 2014. She testified that when the Father did show up,
she went over the service plan with him and he appeared to understand the plan’s
requirements. She testified that she reviewed the plan with him and asked for his
input and gave him an opportunity to add to the plan or take items away from the
plan.
The caseworker testified that the Father participated in some services but did
not complete the service plan. She explained that the Father submitted himself for
and received a drug and alcohol assessment. The assessment indicated that the
Father needed to attend alcohol and drug education courses. The caseworker was
concerned because the assessment also indicated that the evaluator believed the
8
Father did not appear truthful during the assessment and appeared to minimize his
drug and alcohol use.
According to the caseworker, the Father exercised his visits with the
children throughout the case, but did not complete his counseling requirements
successfully. The Father failed to complete the service plan requirement regarding
his alleged sexual offense, he did not participate in the required sex offender group
class, and he did not go to the parenting collaboration group.
The caseworker testified that she was concerned about placing the children
with the Father because the Father’s current girlfriend tested positive for marijuana
use. While the Father took eight drug tests for the Department in the nine months
prior to trial and tested negative for drug use on each occasion, the caseworker
explained that the Father missed taking half of the required tests.
Regarding the allegation of sexual abuse, the caseworker acknowledged that
the children’s former caseworker indicated in a sworn affidavit that the Mother
told her that I.K. never told the Mother she had been sexually abused by the Father,
that the Mother did not believe that I.K. had been sexually abused, and that the
Mother believed I.K. had been coached. The caseworker recommended that the
court terminate the Father’s parental rights.
9
The CASA advocate for the children also recommended that the court
terminate the Father’s parental rights to G.R. and T.R. She explained her concerns
that the Father failed to complete all of the items on his service plan. The CASA
advocate testified that she believes terminating the Father’s rights would be in G.R.
and T.R.’s best interest. She based her opinion not only on I.K.’s credible outcry of
sexual abuse against the Father but also on the documented history of the Father’s
physical abuse against G.R. and T.R.
The foster mother testified that when G.R. and T.R. first came into her home
they struggled with hyperactivity and anger problems. She testified that after the
children visited with the Mother or the Father, their behavioral issues intensified.
After visiting with the Father, G.R. came home terrified that the Father was going
to take G.R. away. She testified that both children seemed to be “really scared” of
the Father.
The foster mother also fosters I.K. The foster mother testified that she has no
doubt that the Father sexually abused I.K because I.K. demonstrates characteristics
of having been sexually abused. The foster mother testified in detail regarding
I.K.’s outcry statement to her that she had been sexually abused by the Father. She
also testified that I.K. has acted out sexually at school towards other students. In
10
her opinion, I.K. was scared of the Father and had told her that the Father had hit
her very hard.
One provision of the Father’s service plan ordered him to attend counseling
sessions with Victor Love, a licensed marriage and family therapist. The Father
had his first session with Love on March 26, 2014, and he attended counseling
with Love approximately twice a month until trial in October 2014. Love testified
that he did not believe the Father progressed therapeutically regarding his
stepdaughter’s allegations of sexual abuse. Love spoke to the Father about the
services the Department required the Father to complete relative to the sexual
abuse, including the requirement that the Father undergo a psychosexual
assessment, attend Arena Counseling, and submit to Dr. Walter Quijano for sexual
abuse and sexual offending treatment. Love testified that he spoke with the Father
about the recommendation from the psychosexual evaluation that the Father
participate in a boundaries class. Love testified that the Father ultimately did not
participate in the class. Love recalled that the Father told him that he did not want
to participate in the class because the Father believed participation in the class was
an admission of guilt to the alleged offense. Love explained to the Father several
times that it was just a psychoeducational class and that he would not be required
to admit to any kind of sexual offense. He explained to the Father that the class
11
would teach him about sexual abuse issues and the proper boundaries in a parent-
child relationship. Love testified that he believed the Father needed to attend the
class and he told the Father several times that the Father would benefit from
attending the class. According to Love, while the Father attended counseling
sessions with Love, the Father was not cooperative during the sessions and did not
appear open to learning anything.
Love testified that he relied on the psychological evaluation of the Father
performed by Dr. Jenny Stadler. In evaluating the Father’s child abuse potential,
Stadler found that the Father had an elevated lie scale that caused her concern. An
elevated lie scale result reflects Stadler’s assessment that the Father attempted to
make himself look better during the evaluation, thereby undermining the credibility
of the answers he provided. According to Love, Stadler assessed that the Father
“had poor knowledge of parenting information with respect to using corporal
punishment rather than non-corporal punishment methods of parenting.” Stadler
diagnosed the Father as having an unspecified personality disorder to include some
histrionic and narcissistic personality traits. Love found Stadler’s findings
consistent with what he observed in counseling. Love testified that the Father’s
diagnosis of narcissistic personality is concerning because it reflects a lack of
empathy and creates a potential for abuse.
12
Love testified that the Father made little to no progress relative to his
domestic violence issues or his substance abuse issues. Love was of the opinion
that the Father was noncompliant with his services. Love acknowledged that at
times the Father became emotional while talking about his children and expressed
his love for them.
The Father testified on his own behalf. He testified that he had a “turbulent
relationship” with the Mother. According to the Father, the Mother has “[b]ipolar
[disorder], PSD [sic], [and] schizophrenia.” While the Father and the Mother were
married, the Mother did not take medication to treat her conditions. The Father
testified that he had only one physical altercation with the Mother. 3 He explained
that he discovered the Mother was buying Adderall from someone in her apartment
complex.4 According to the Father, when he confronted the Mother about her pill
use, she became physical and he had to restrain her to keep from getting “clawed
up[.]” The Father was arrested for unlawful restraint and served thirty days in jail.
The Father testified that after being released, he was subjected to a fifteen-day
restraining order placed on him by the Mother. By the end of the restraining order,
3
The Father later recalled an additional physical altercation with the Mother.
4
Although the record does not indicate what Adderall is, we take judicial
notice that it is an amphetamine generally used to treat attention deficit
hyperactivity disorder.
13
sometime in the spring of 2013, the Father discovered the Mother and the children
had been evicted from their apartment, and the Father could not find them. He
testified he did everything he could to try to find G.R. and T.R., including at some
point notifying CPS that his children might be in danger.
The Father disagreed with most of Dr. Stadler’s conclusions. He denied that
he was a narcissist and denied that he demonstrated histrionic characteristics. The
Father also disagreed with Love’s assessment that he was uncooperative with Love
during counseling. The Father explained that he did not attend the boundaries class
because those classes are meant for convicted sex offenders and he contends he did
not belong in the class because he is not a convicted sex offender. Although he
knew attending the class was a requirement of his service plan, the Father was
concerned that attending the class would be an admission of guilt. The Father
admitted that he did not complete his family plan of service.
The Father admitted that during the pendency of the case he used marijuana
at least one time. He also admitted to spanking his children, but testified to using
other forms of discipline as well. He admitted he did not attend the parent
collaboration group. He also admitted that he did not participate in Dr. Quijano’s
sex offender treatment class. The Father admitted he did not take the ten-or
thirteen-week course suggested in his plan, but explained those courses were not
14
feasible given his limited transportation options. Instead, the Father opted to take a
four-hour parenting course from a church that he considered more accessible to
him.
The Father told the court that in the four years immediately prior to trial, he
had lived at seven or eight different places, which he agreed did not reflect
stability. The Father admitted that he had not paid child support for either child
during the pendency of the case. In his defense, the Father testified that he
graduated from tech school in June of 2014 and received a two-year degree in
electronic engineering. He now lives in a house and claims he has made a stable
home for G.R. and T.R.
He admitted to using various drugs in the past including marijuana,
methamphetamines, and LSD. The Father admitted that after taking a polygraph
test concerning the allegation of sexual abuse, the polygrapher told him it did not
look good for him. However, the Father continued to deny that he had sexually
abused I.K. The Father testified that he complied with the family plan of service to
the best of his ability given the time restrictions. He admitted that he “[m]ore or
less” had a clear picture of the Department’s expectations under the plan but still
had some questions and concerns.
15
N.C. lives with the Father and is his fiancé. She testified that her two
children (ages eleven and ten) reside with them. Because she is bipolar, she does
not work outside the home but receives a SSI check. N.C. has also been diagnosed
with severe depression. At the time of trial, N.C. was not under the care of a
physician or taking medication for these conditions. She testified she and her
children receive substantial counseling. She testified that the Father interacts with
her children and helps them financially. In N.C.’s opinion, her children adore the
Father, who helps with their homework, helps with chores around the house, and
helps support them. N.C. testified that she has never seen the Father interact with
her children inappropriately. The Father does not discipline her children and has
never been physically violent with her or her children. Despite knowing that the
Father failed his polygraph test, N.C. testified she does not believe the Father was
inappropriate with I.K.
N.C. admitted she tested positive for marijuana use during the pendency of
G.R. and T.R.’s case. She explained that she smokes marijuana as a form of self-
medication for her depression. She smokes marijuana on stressful occasions when
she is not taking medication. She testified that the Father told her he recently tested
positive for marijuana use, but N.C. denied that she had ever seen the Father smoke
16
marijuana. She testified she believed she could provide G.R. and T.R with a good
home.
Melody Clarke testified that she has counseled N.C. and her children for
approximately three years. She noted that the Father attended counseling with N.C.
and her children, as part of her family sessions during the year before trial. In the
family sessions, she counseled the family on appropriate boundaries with children
for stepparents. The children did not report any inappropriate behavior between the
children and the Father. She observed the Father’s interactions with N.C.’s
children and found them to be appropriate. It was her opinion that the Father has
been a good influence on N.C.’s children because he provides more structure, helps
them communicate more effectively, and buys them things they need.
Clarke testified that she has also conducted individual counseling sessions
with the Father. She explained that the Father was stressed out about the
allegations of inappropriate sexual behavior and the resulting criminal
investigation into those allegations. Clarke testified that based on what she
observed in the Father, she does not believe the sexual assault allegations are true.
She also testified that she has not seen signs of narcissistic behavior or histrionics
in the Father.
17
After a bench trial, the trial court signed an order terminating the parental
rights of the Father to T.R. and G.R. on November 17, 2014. The Father timely
appealed the trial court’s order.
Grounds for Termination
In his first, second, and third issues, the Father contends that the evidence is
legally and factually insufficient to support the trial court’s findings that he
violated subsections (D), (E), and (O) of section 161.001(1) of the Texas Family
Code. The trial court found that the Father (1) knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endanger the
physical or emotional well-being of the children, (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangers the physical or emotional well-being of the children, and (3) failed to
comply with the provisions of a court order that specifically established the actions
necessary for the Father to obtain the return of the children who have been in the
permanent or temporary managing conservatorship of the Department for not less
than nine months as a result of the children’s removal from the parent for abuse or
neglect. For the reasons we discuss below, we conclude that the record contains
clear and convincing evidence to support the trial court’s finding that the Father
failed to comply with the provisions of its order that specifically established the
18
actions necessary for the Father to obtain the return of G.R. and T.R. See Tex.
Fam. Code Ann. § 161.001(1)(O).
The Father argues the Department’s service plan failed to meet the basic
requirements of section 263.102 of the Texas Family Code because the plan is
vague and was not developed in conference with the Father. See generally Tex.
Fam. Code Ann. § 263.102 (West 2014). We find nothing in the record
demonstrating that the Father challenged the Department’s compliance with
section 263.102 in the trial court. Therefore, we find that the Father failed to
preserve his complaint that the Department did not comply with section 263.102 of
the Texas Family Code. See Tex. R. App. P. 33.1(a).
Section 161.001(1)(O) of the Texas Family Code provides that the court
may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has:
failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of [the Department] for not less than nine
months as a result of the child’s removal from the parent under
Chapter 262 for the abuse or neglect of the child[.]
Tex. Fam. Code Ann. § 161.001(1)(O). “Subsection O may operate as a ground for
termination when a parent from whom children are not physically removed fails to
comply with court-ordered services.” In re K.S., No. 09-14-00222-CV, 2014 WL
19
4755500, at *5 (Tex. App.—Beaumont Sept. 25, 2014, pet. denied) (mem. op.); In
re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
The Father argues the record contains no evidence that a court order was
entered concerning the tasks the Father had to complete for return of his children.
However, the clerk’s record includes the trial court’s temporary orders, which
specifically ordered the Father to “comply with each requirement set out in the
Department’s original, or any amended, service plan during the pendency of this
suit.” The Father’s service plan, admitted into evidence at trial, included, among
other things, requirements that the Father: (1) attend and complete a parenting
course offered by certain providers identified in the service plan; (2) submit to
random drug testing at the Department’s discretion; (3) participate in Dr. Quijano’s
sex offender awareness class and follow all recommendations; (4) participate in a
parent collaboration support group once a month; (5) submit to psychological
evaluation and follow all recommendations; and (6) actively participate in
counseling and follow all recommendations of the therapist. We conclude the
record on appeal contains the appropriate documents in relation to evaluating the
trial court’s termination under subsection (O). See In re J.F., No. 11-14-00246-CV,
2015 WL 1135190, at *2 (Tex. App.—Eastland March 6, 2015, no pet. h.); In re
E.S.C., 287 S.W.3d 471, 474-75 (Tex. App.—Dallas 2009, pet. denied).
20
The CPS caseworker testified that she went over the service plan with the
Father and he appeared to understand the plan’s requirements. The Father also
testified that he “[m]ore or less” had a clear picture of the Department’s
expectations under the plan. Love testified that he addressed various concerns the
Father had about attending the sex offender classes with the Father. The Father
explained how certain requirements were inconvenient for him to complete and
that he should not be required to meet certain other requirements.
The evidence was undisputed, as detailed above, that the Father failed to
complete the services that were required by his family service plan and ordered by
the trial court. While the Father made a number of excuses for his failure to
complete the services, section 161.001(1)(O) does not require the court to consider
excuses for a parent’s failure to comply with the court-ordered services. See In re
J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.). The undisputed
evidence also reflects that G.R. and T.R. were removed from their home due to
abuse and neglect and that they had been in the care of the Department for well
over nine months.
Viewing the evidence in the light most favorable to the trial court’s finding
under subsection 161.001(1)(O), we conclude that the trial court reasonably could
have formed a firm belief or conviction that the Father failed to comply with the
21
provisions of a court order that specifically established the actions necessary for
him to obtain the return of G.R. and T.R. See Tex. Fam. Code Ann. §
161.001(1)(O); see also In re T.T., 228 S.W.3d 312, 319-20 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied) (affirming termination where the mother failed to
comply with four of the seven requirements and the father failed to comply with
three of seven requirements); In re C.D.B., 218 S.W.3d 308, 311-12 (Tex. App.—
Dallas 2007, no pet.) (affirming termination based on the mother’s partial
compliance with service plan).
Based on our review of the entire record, we further conclude that the
evidence is such that the trial court reasonably could have formed a firm belief or
conviction about the truth of the State’s allegation that the Father failed to comply
with court-ordered services. See C.H., 89 S.W.3d at 25. We, therefore, conclude
that the evidence was legally and factually sufficient to support the trial court’s
finding under section 161.001(1)(O). We overrule the Father’s first, second, and
third issues. 5
5
We need not address the sufficiency of the evidence to support a violation
of subsections (1)(D), or (E). In re D.S., 333 S.W.3d 379, 388 (Tex. App.—
Amarillo 2011, no pet.) (“If multiple predicate grounds are found by the trial court,
we will affirm based on any one ground because only one is necessary for
termination of parental rights.”).
22
Best Interest of the Child
The trial court found that termination was in the children’s best interest. In
his fourth issue, the Father contends the evidence is legally and factually
insufficient to support this finding.
Regarding the children’s best interest, we consider a non-exhaustive list of
factors: (1) desires of the children; (2) emotional and physical needs of the children
now and in the future; (3) emotional and physical danger to the children now and
in the future; (4) parental abilities of the individual seeking custody; (5) programs
available to assist this individual to promote the best interest of the children; (6)
plans for the children by this individual or by the agency seeking custody; (7)
stability of the home or proposed placement; (8) acts or omissions of the parent
which may indicate that the existing parent-child relationship is not proper; and (9)
any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West 2014).
In reviewing the trial court’s decision to terminate a parent’s relationship with a
child, we consider that “there is a strong presumption that the best interest of a
child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). The party seeking termination need not prove that each Holley
factor favors termination. C.H., 89 S.W.3d at 27. A trial court’s best interest
23
finding “is not dependent upon, or equivalent to, a finding that the child has been
harmed by abuse or neglect or is in danger of such harm[,]” but rather it “is a term
of art encompassing a much broader, facts-and-circumstances based evaluation that
is accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
The Father argues that the record reflects that the children are bonded to him
and that his visits with them are appropriate. However, the record does not support
this contention. Rather, the record does not clearly reflect the children’s desires.
The only clear testimony regarding the children’s reaction to the Father came from
the children’s foster mother who unequivocally testified that both G.R. and T.R.
are afraid of the Father and that G.R. returns from visits fearful that the Father is
going to come and take him away.
As explained above, the Father has a history of using illegal drugs. Both he
and his fiancé admitted to testing positive for drug use during the pendency of this
case. The evidence also supports that the Father failed to submit to one-half of the
Department’s requests for drug testing. There was also evidence at trial that the
Father was physically abusive to the Mother, G.R., and T.R. G.R. indicated that he
witnessed the Father throw the Mother down the stairs. According to the foster
mother’s testimony, initially both children were unaccustomed to the lack of
fighting and hitting in their foster home.
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Additionally, the Father failed to show adequate progress on his service
plan. Specifically, the Father was asked to attend parenting classes, participate in a
sex offender awareness class, participate in a parent collaboration support group
once a month, and actively participate in family counseling. When the Father was
asked to explain why he did not complete his services, he explained that it was
either too difficult for him to complete the task required or he did not think he
should have to do what was required. He made the decision not to complete the
services even though his service plan was explained to him and he understood the
requirements to get his children back. The Father’s counselor testified that the
Father did not successfully complete counseling because he was not cooperative.
The CPS caseworker for the children testified that G.R. and T.R. have
special needs and both receive therapy. She testified that she is satisfied that the
children’s foster family is meeting their needs. The caseworker asked the court to
name the Department as the permanent managing conservator. She explained the
Department’s goal is unrelated adoption with a concurrent goal of relative
adoption.
The children’s foster mother testified G.R. and T.R. lived with her for over
six months and are doing very well. The foster mother testified that she and her
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husband are willing to adopt G.R. and T.R., and she believes that is the best option
for them.
The CASA advocate testified that G.R. and T.R. have flourished in their
foster parents’ home. She testified that the children have a nurturing bond with
their foster mother and the rest of the siblings in the home. The CASA advocate
testified that the children’s foster mother has worked diligently with both children
and that they are doing extremely well in school. She testified that the foster family
is both financially and emotionally prepared for long-term placement of the
children. The children are happy and content in their current placement.
Viewing the evidence in the light most favorable to the best interest finding,
we conclude the trial court reasonably could have formed a firm belief or
conviction that termination was in the best interest of G.R. and T.R. Based on our
review of the entire record, we further conclude that the trial court could
reasonably have formed a firm belief or conviction that it would be in the best
interest of both children for the Father’s parental rights to be terminated. The
evidence is both legally and factually sufficient to support the best interest finding.
We overrule the Father’s fourth issue.
Having overruled all of the Father’s issues on appeal, we affirm the trial
court’s judgment.
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AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on March 17, 2015
Opinion Delivered May 14, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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