E. D. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00766-CV
E. D., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 267,106-B, THE HONORABLE CHARLES H. VAN ORDEN, JUDGE PRESIDING
MEMORANDUM OPINION
E.D. appeals from the trial court’s final decree terminating her parental rights to
her sons “Doug,” “Junior,” “Carl,” and “Gary.” 1 The court determined that E.D. had knowingly
placed the children with persons who engaged in conduct that endangered their physical and
emotional well-being, that she constructively abandoned the children, and that she had not
complied with a court order that established actions necessary for her to regain custody. See
Tex. Fam. Code § 161.001(b)(1)(E), (N), (O). The court also found that termination of her
parental rights was in the children’s best interest. See id. § 161.001(b)(2). E.D. complains that
the evidence is legally and factually insufficient to support the trial court’s findings related to
1
We refer to appellant by her initials and to the children by aliases. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.8. The trial court also terminated the parental rights of the
children’s fathers, but neither has appealed.
best interest and to statutory grounds for termination under subsections (E), (N), and (O). As
explained below, we affirm the trial court’s decree.
PROCEDURAL AND FACTUAL SUMMARY
Doug was born in 2011, Junior in 2012, Carl in 2014, and Gary in 2015. C.B. is
Doug’s father; M.H. is the father of Junior, Carl, and Gary. The Texas Department of Family
and Protective Services’ removal affidavit stated that the Department got involved with the
family in 2012, when it was informed about “concerns for failure to thrive” for Junior, that
domestic violence had occurred between E.D. and M.H. while Junior and Doug were present,
that the parents had mental health issues, and that C.B. and M.H. had a fight in which M.H. was
stabbed. In late 2014, about ten months before Gary was born, the trial court signed an order
placing the three older children with M.H.’s parents, Denice and Robert; designating Denice and
Robert as the children’s joint managing conservators and the parents as possessory conservators;
limiting the parents to supervised visitation; and providing that once Carl turned four, E.D. and
M.H. could have visitation under the standard possession order.
Three years later, the Department sought custody of all four children after
receiving reports alleging neglectful supervision of the children; that Junior “was in the care of”
his father, M.H.; that M.H. had slapped Doug, his stepson; and that Doug had said M.H. bit him
on the arm. During an investigation, M.H. told officers that Doug “has anger issues and hits and
slaps himself” and that he might have been injured when M.H. “had to restrain” him. However,
law enforcement officers observed “finger mark bruises on the left side of [Doug’s] cheek,” less
apparent marks on the right side of his face, and scratch marks and bruising on his neck. A
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physical examination found that Doug had injuries “consistent with physical abuse”—“linear
bruising on his neck, a black eye, bruised face, and [a] bite mark on his left upper arm.”
The affidavit further stated that a Department caseworker interviewed Denice,
who admitted that she, Robert, and the children had been living with E.D. and M.H. Denice
“admitted to deplorable living conditions,” including broken windows and a lack of running
water that meant the children had to “urinate and defecate outside on the ground,” but she was
not concerned because she said she and Robert would be moving soon. However, Denice could
neither provide any details about the move, nor explain “how she planned to ensure the
children’s basic and safety needs” in the meantime, and she seemed more concerned about her
son, M.H., than about the children’s safety or Doug’s injuries. The children were removed and
placed in foster care. A final hearing began in April 2019 and concluded in October 2019, at
which time the trial court signed the decree of termination. E.D. did not attend the October
hearing—her attorney said E.D. had informed her that she was in North Carolina.
Department caseworker Latrice Madison testified at both the April and October
hearings and stated that the children were removed due to physical abuse by M.H. Madison
testified that although the order placing the older children with Denice and Robert barred E.D.
and M.H. from unsupervised visitation, Denice, Robert, E.D., and M.H. all admitted that E.D.
and M.H. had been living in the same house and were left unsupervised with the boys.
Madison said that when the children were removed, the younger boys, Carl and
Gary, were “fine” and did not exhibit behavioral problems. Doug and Junior, however,
expressed homicidal and suicidal thoughts and had significant behavioral problems. At the April
hearing, Madison testified that Junior had been placed in a foster home in mid-2018 and that his
foster parents wanted to adopt him. Madison testified that when Junior was removed from
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Denice and Robert’s care, he was “pretty over the top where he had physical aggressive
behaviors,” “described blowing up his day care,” and “would probably threaten you or hit you or
spit on you and call you names” if angry. Since his removal, Junior was happy and doing well in
his foster home and had made significant progress. Madison said, “He had homicidal and
suicidal ideations, and now he wants to live. He’s always happy. He’s made a lot of progress
even [at] school. The school, his grades are coming up.” She had talked to him about the
possibility of adoption, and she testified that Junior “is ready. He calls them mom and dad. He
calls it his forever home.” Junior was “very adamant that he does not want to live with his
parent[s] or probably see them.”
Doug was initially placed in the same foster home as Junior but had to be
removed shortly before the April hearing, hospitalized for several days, and placed in a
residential treatment center (RTC) because he had been physically violent at school and at home,
especially against Junior—he had hit and thrown things at his foster mother and had hit Junior
with a skateboard and “told him to die.” Madison said that when the boys lived together in the
foster home, Junior had expressed concerns that Doug’s behavior would “ruin[] the ability for
[Junior] to stay forever.” Doug, like Junior, had expressed homicidal and suicidal thoughts, and
Madison testified in April that he had not made as much progress as Junior: “He’s not saying he
wants to kill anymore, but suicidal ideations are there. He’s still very depressed.” By the time of
the October hearing, however, Doug had made enough progress that he had been moved from the
RTC to a therapeutic foster home. Madison testified that when Doug talked about seeing his
parents, he “would go back and forth. Sometimes he wouldn’t want to see his parents, and
sometimes he will want to see his parents.”
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The youngest boys, Carl and Gary, were placed together in another foster home in
December 2017, and Madison had no concerns about that placement. She testified in April that
when asked about their foster home being made permanent, “They’ll say they want to go back
with mommy, but at the same time they say they want to stay in the [foster] home.”
Madison testified that E.D. had completed some of the requirements of her safety
plan. However, she was discharged from counseling because she had too many cancellations,
and her visitations were “abated” due to no-shows or last-minute cancellations—E.D. told
Madison that she had forgotten at least one visitation. E.D. saw all four children in July 2018.
Madison testified that E.D. had a visit with Doug and Junior for Christmas 2018, but that
Madison was unable to get approval for a Christmas visit with the two younger children because
E.D. had been disruptive during a court hearing, yelling insults at their foster parents. E.D.
therefore had not seen Carl and Gary since July 2018. Asked about E.D.’s conduct during the
one or two visits Madison had observed, she said that “[f]or the most part, she wasn’t able to
handle either of the children for any visits.” Madison also said she “had to come in and interject
because I didn’t see parenting.”
Madison conceded that E.D. had not been accused of hurting the children and that
“all the allegations” were about M.H., who was “beating [Doug and Junior], biting them,
whipping them, [and] spanking them.” However, Madison said that it was “not correct” to say
that E.D. “was not offending or didn’t do anything,” explaining that E.D. “knew what was going
on” but kept living with M.H. and leaving the children in his care. She also noted that the
children “talk about the domestic violence at the home.” Madison testified that E.D. continued
to live with M.H. throughout the case and said she believed E.D. had “basically chosen [M.H.] or
somebody else over these children” and had not shown that the children were a priority for her,
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noting that E.D. had not come to the October hearing despite knowing about it. She believed
termination was in the children’s best interest because:
[B]oth parents had a CPS case before where they weren’t given—they weren’t
able to have the kids returned to them. With this case, they had a fighting chance
and they made no progress. They weren’t able to—in 18 months they weren’t
able to have therapy and they weren’t able to make any progress. They haven’t
seen the children in months, hadn’t really put up a fight to see the children. The
children are doing—the three youngest are doing very well where they are. They
are thriving. They weren’t thriving when they were with the relatives so it’s in
the best interest of the children for them to remain where they are.
Madison believed that it was in the best interest of the three younger boys for them to be adopted
by their current foster placements.
At the October hearing, Christel Holliman, the family’s new caseworker since
May 2019, testified that E.D. had texted the day before to say she was in North Carolina and
would not attend the hearing. E.D. had texted in early September to say “she was homeless and
lost her job and wasn’t with [M.H.] anymore,” but when Holliman replied to try to set a meeting
to arrange assistance, E.D. did not respond. As far as Holliman knew, E.D. was still homeless.
E.D. had not had any visits or other contact with the children since Holliman’s assignment to the
case. Holliman said that although the trial court had reinstated E.D.’s visitations after the April
hearing, E.D. never attempted to schedule a visit.
Holliman said that Doug had been released from the RTC and placed in a
therapeutic foster home. He “still has struggles, but he’s doing better,” and Holliman believed
that he could be adopted in the future. Holliman testified that Carl and Gary were bonded with
their foster parents and “very much at home there.” She believed that they wanted to stay in
their foster home and said that the boys “say they’re safe and they’re happy” in that home. As
6
for Junior, she said his foster placement was going well—“he calls them mom and dad. And he
told me to tell the Judge that he’s happy.” Holliman said Doug sometimes wants to talk to E.D.,
but she was not sure maintaining contact with E.D. “would be in his best interest” because he has
“a lot of behaviors. He’s got a lot of issues. And I don’t know if that would be bad for him.”
She had tried to call E.D. so that Doug could speak to her, but E.D. “doesn’t answer the phone.”
Pamela, Junior’s foster mother, testified that he had been placed in her home since
August 2018, that she and her husband hoped to adopt him, and that he was “very happy with us.
He calls us mom and dad.” Pamela testified that Doug, who was seven at the time, was placed in
their home for about three and a half weeks and did “okay” at first, but by the third week, “[h]e
was throwing things, yelling, trying to leave, [and] physically assaulted his brother.” Pamela
was “heartbroken” about having him removed, but “did not have the ability to deal with him”
and “felt like I was hurting him more than helping him.” She and her husband took Junior to
visit Doug at the RTC, and they were planning another visit to Doug’s new therapeutic foster
home. If his behavior improves sufficiently, Pamela said, she and her husband were open to the
possibility of having him return to their home and had “already spoken to the caseworker about
it.” Pamela said that E.D. had sent a “happy birthday” text to Junior in July 2019 but had not
sent him birthday or Christmas gifts “or anything else.” Pamela did not believe E.D. “put forth
an effort to have the children returned.” She thought that it was in Junior’s best interest for
E.D.’s rights to be terminated and for her and her husband to adopt Junior and give him the
permanent home he needs.
Carl and Gary’s foster father, Tracy, testified that the boys had been in his home
since December 2017 and that he and his partner wanted to adopt them. He said that the boys
7
considered the foster home to be their home, that they referred to Tracy as their dad, and that,
“[w]ithout a doubt,” termination and adoption was in the boys’ best interest.
STANDARD OF REVIEW
To terminate a parent’s rights to her child, the Department must prove by clear
and convincing evidence that the parent engaged in conduct that amounts to at least one statutory
ground for termination pursuant to section 161.001 and that termination is in the child’s best
interest. Tex. Fam. Code § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and
convincing evidence is “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 § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In our review of the
evidence, we must “provide due deference to the decisions of the factfinder, who, having full
opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the
credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re
J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
In evaluating the legal sufficiency of the evidence, we look at “all the evidence in
the light most favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002); Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.—Austin 2004, pet. denied).
We “assume that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so” and “disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible,” J.F.C., 96 S.W.3d at 266, but we need not
disregard undisputed evidence contrary to the determination, K.M.L., 443 S.W.3d at 113. If after
8
reviewing the evidence, including undisputed evidence that does not support the findings, we
conclude that no reasonable factfinder could have formed a firm belief or conviction that the
Department carried its evidentiary burden, the evidence is legally insufficient. J.F.C., 96 S.W.3d
at 266; Williams, 150 S.W.3d at 449. In considering factual sufficiency, we review the entire
record and ask whether the “disputed evidence is such that a reasonable factfinder could not have
resolved that disputed evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266. If the
disputed evidence that could not be credited in favor of the finding is so significant that a
reasonable factfinder could not have formed a firm belief or conviction as to the truth of the
Department’s allegations, we will hold that the evidence is factually insufficient. Id.
DISCUSSION
E.D. argues that the evidence is legally and factually insufficient to support the
trial court’s findings that she committed the three recited statutory grounds for termination. She
further asserts that the evidence is legally and factually insufficient to support the finding that
termination was in the children’s best interest.
Statutory Grounds
E.D. argues that the evidence does not support termination of her rights to all four
children under subsection (E) because the older three children had been placed by the
Department into the care of their grandparents, not E.D. Only Gary, the youngest, was in her
care at the time, and E.D. asserts that only the grandparents could have knowingly placed the
older children with someone who endangered their well-being. Thus, E.D. argues, it was error to
terminate her rights under subsection (E) as to the older three children, who were not in her care.
9
Subsection (E) allows for the termination of a parent’s rights to her child if the
factfinder determines that she “engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional well-being of the child.”
Tex. Fam. Code § 161.001(b)(1)(E). “‘[E]ndanger’ means more than a threat of metaphysical
injury or potential ill effects of a less-than-ideal family environment, but that endangering
conduct need not be directed at the child.” In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). Thus,
the Department was required to show by clear and convincing evidence that E.D., through her
own acts and omissions, exposed the children to loss or injury or jeopardized their emotional or
physical well-being. See A.C. v. Texas Dep’t of Family & Protective Servs., 577 S.W.3d 689,
698 (Tex. App.—Austin 2019, pet. denied); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.). Endangerment may be inferred from parental misconduct. A.C.,
577 S.W.3d at 698. Evidence of domestic violence is also relevant to endangerment, even when
the violence is not directed at the children. J.G. v. Texas Dep’t of Family & Protective Servs.,
592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.); In re P.W., 579 S.W.3d 713, 727 (Tex.
App.—Houston [14th Dist.] 2019, no pet.).
It is true that the older three children had been removed from E.D.’s custody.
E.D. therefore insists that she lacked the authority to place the children with M.H. and focuses
only on whether M.H. abused Gary and whether E.D. knew of such abuse. However, the older
three children had been placed in the conservatorship of their grandparents, and although E.D.
and M.H. had been ordered to have only supervised visitation, they lived with the children and
the grandparents and the adults all admitted that E.D. and M.H. spent unsupervised time with the
children. During one of those times, M.H. abused Doug. Madison testified that E.D. “knew
what was going on” and that despite that knowledge, E.D. continued to live with M.H., left the
10
children in his care, and “basically chose[]” him over the children. Madison also noted that the
children talked about domestic violence at home, and the evidence established that the older two
boys were emotionally disturbed when they were removed. See N.D. v. Texas Dep’t of Family &
Protective Servs., No. 03-14-00815-CV, 2015 WL 1778347, at *4–5 (Tex. App.—Austin Apr.
16, 2015, no pet.) (mem. op.) (despite Department’s concerns about father and protective order
against him, mother allowed him to return to home once case was dismissed, allowed child to be
around him, and allowed him to continue living with her after additional violence; trial court
could have credited evidence of mother’s continued contact with father and violence in home,
along with mother’s illegal drug use and alleged criminal activity, to find she had “engaged in a
conscious course of conduct that endangered her children”).
It is not necessary for Gary to have been targeted by M.H.’s violence or to have
otherwise suffered direct harm. See E.N.C., 384 S.W.3d at 803 (“endangering conduct need not
be directed at the child”); J.G., 592 S.W.3d at 524 (same). And although the older boys had been
removed from her care, E.D. retained her parental rights to them and knowingly violated the
earlier court order by living with them and M.H. Although E.D. did not have the authority to
move the older boys to another home, Madison testified that it was “not correct” to say that E.D.
was not culpable, explaining that E.D. “knew what was going on” but continued to live with
M.H. and left the children in his care. While the children were alone with M.H.—the result of
acts or omissions by Denice, Robert, and E.D.—M.H. abused Doug to such a degree that he had
a bite mark on his arm, “finger mark bruises” on his face, and scratches and bruises on his neck.
In addition, E.D did not complete services intended to help her improve her parenting skills, was
apparently homeless at the time of the final hearing, and had not attempted to see her children in
the six months between the final hearing dates. See In re A.J.H., 205 S.W.3d 79, 81 (Tex.
11
App.—Fort Worth 2006, no pet.) (conduct that has effect of subjecting child to uncertainty and
instability may endanger child’s physical and emotional well-being).
E.D. notes that the Texas Supreme Court recently amended rule 277 of the rules
of civil procedure to require that in a parental-termination case submitted to a jury, the trial court
“shall submit separate questions for each parent and each child” as to each statutory ground
alleged. Order Amending Texas Rule of Civil Procedure 277, Misc. Docket No. 20-9008 (Tex.
Jan. 8, 2020) (amendment effective May 1, 2020). However, that amendment is not effective
until May and does not apply to a trial court’s ruling in a bench trial. Further, all the children
were in the same household under the same circumstances, and thus the evidence is the same, as
is our analysis, save for the fact that the two younger boys did not show any ill effects when they
were removed and placed into foster care. But that difference does not change our conclusion: a
parent’s rights to her child may be terminated even if the conduct made the subject of a
subsection (E) allegation was directed at another person in the household. See, e.g., J.D.S. v.
Texas Dep’t of Family Protective Servs., 458 S.W.3d 33, 41 (Tex. App.—El Paso 2014, no pet.)
(“To be relevant, the conduct does not have to have been directed at the child, nor must actual
harm result to the child from the conduct.”).
We hold that the evidence is both legally and factually sufficient to support the
trial court’s determination that E.D. had engaged in a conscious course of conduct that
endangered the children’s emotional and physical well-being. See Tex. Fam. Code
§ 161.001(b)(1)(E). We overrule E.D.’s first issue on appeal. Because we have held that
sufficient evidence supports the trial court’s finding of statutory ground for termination under
subsection (E), we need not address her second and third issues, which challenge the evidence
supporting the court’s findings under subsection (N) and (O). See A.C., 577 S.W.3d at 698.
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Best Interest
We review a trial court’s best-interest determination in light of the considerations
set out in Holley v. Adams, taking into account the children’s wishes, their emotional and
physical needs now and in the future, present and future emotional or physical danger posed to
the children, the parenting skills of those seeking custody, any programs available to assist those
seeking custody to promote the children’s best interest, plans for the children’s future, the
stability of the home or proposed placement, conduct by the parent that might show that the
parent-child relationship is inappropriate, and any excuses for the parent’s conduct. 544 S.W.2d
367, 371-72 (Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved,
and a lack of evidence about some of the factors does not “preclude a factfinder from reasonably
forming a strong conviction or belief that termination is in the child’s best interest, particularly if
the evidence were undisputed that the parental relationship endangered the safety of the child.”
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The children’s need for permanence is the paramount
consideration when determining their present and future physical and emotional needs. L.R. v.
Texas Dep’t of Family & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1
(Tex. App.—Austin June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 533 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). A parent’s rights may not be terminated merely
because the children might be better off living elsewhere, but the factfinder may consider
whether termination and adoption versus an impermanent foster-care arrangement would better
serve the children’s best interest. See L.R., 2018 WL 3059959, at *1.
E.D. argues that the trial court’s best-interest determination did not take into
consideration: “the expressed desire of some of the Children to be with E.D.”; Doug’s emotional
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and physical needs; the Department’s “lack of a permanent plan” for Doug, who will remain in a
therapeutic foster home for the time being; the “lack of evidence of E.D. doing any acts or
omissions that caused all the Children’s removal”; the fact that the siblings will be separated; the
fact that E.D. completed some of her required services; E.D.’s successful visits with the children;
and the fact that the trial court had abated her visits for three months and that the Department
then barred her from visitations over a ten-month period. Thus, she argues, the evidence is
insufficient to support the trial court’s finding that termination was in the children’s best interest.
Evidence showed that upon their most recent removal, both Doug, who was six
years old, and Junior, who was five, were having homicidal and suicidal thoughts and serious
behavioral problems. Doug had to be hospitalized and placed in a residential treatment center for
several months. By the time of the hearing in October, he had improved to a point that he could
be moved into a therapeutic foster home, and Holliman believed he could be adopted in the
future. He was still depressed and expressed suicidal thoughts, but he was no longer expressing
homicidal thoughts. As for Junior, his behavior had improved significantly since his removal
and placement in his foster home and he was no longer expressing homicidal and suicidal
ideations. He was happy and making good progress in school and was “adamant” that he did not
want to return to his parents and instead wanted to be adopted by his foster parents. His foster
mother testified that she and her husband wished to adopt him and that they were open to having
Doug returned to their home if his behavior continued to improve.
Although there was testimony that Doug vacillated about wanting to see his
parents, Holliman testified that she was concerned that ongoing contact with E.D. might harm
Doug’s well-being and noted that E.D. had not answered the phone when Holliman and Doug
tried to call her. Further, the reason for the children’s removal was that M.H. beat Doug, and
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Madison testified that E.D. knew about M.H.’s violent behavior and still allowed him to be alone
with the children. The children had been removed from E.D.’s and M.H.’s care and placed with
their grandparents, but E.D. and M.H. moved in, violating the court’s order and living in a house
that lacked running water and had other safety issues.
Gary and Carl were thriving in their foster home, and their foster parents hoped to
adopt them. There was testimony that they sometimes said they wanted to return to E.D. but also
that they wanted to remain in their foster home. Holliman testified that both boys were bonded
with their foster fathers and were safe, happy, and “very much at home” with them. See M.R. v.
Texas Dep’t of Family & Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3
(Tex. App.—Austin Feb. 23, 2018, no pet.) (mem. op.) (in considering best interest of child too
young to express wishes, factfinder may consider that child has bonded with foster family, is
well cared for, and has spent minimal time with parent).
As for E.D.’s parenting skills, programs available to assist her in parenting, her
plans for the children’s future, and the stability of her living situation, see Holley, 544 S.W.2d at
371-72, E.D. did complete some of the requirements of her safety plan, but her therapy and
visitations were terminated or abated due to her cancellations or no-shows. She saw all four
children in July 2018 and had seen Doug and Junior at Christmas 2018, but she was not allowed
to see the younger children at that time because of her behavior toward their foster parents.
Madison testified that when she observed E.D.’s visits, she “didn’t see parenting.” Although
E.D. was given permission to resume visits between the April and October hearings, she did not
make any effort to do so and did not answer her phone when Holliman tried to let Doug speak to
her. See M.R., 2018 WL 1023899, at *3 (factfinder may consider, among other factors, that child
has spent minimal time with parent). E.D. told Holliman about a month before the final hearing
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in October that she was homeless and without a job, and she did not appear at the hearing, having
informed Holliman and her attorney just before the hearing that she was in North Carolina. E.D.
did not present any evidence about her view of her parenting abilities, any excuses for her past
behavior, her plans for the future, or her relationship with the children.
Although E.D. argues that it was not her conduct that led to the children’s
removal, there was testimony that the children were present for domestic violence between E.D.
and M.H. to such a point that the children talked about the violence. E.D. and M.H. moved in
with Denice and Robert, violating the earlier court order, and Madison testified that E.D. left the
children in M.H.’s care despite knowing about his violent tendencies. She also continued to live
with him while the case was pending, and Madison testified that E.D. had “basically chosen” him
over the children and had not shown that the children were important to her. Further, during the
time she lived with the children and their grandparents, there is no indication that E.D. took any
action to improve the children’s living conditions—conditions that included broken windows and
a lack of running water.
Madison, Holliman, and the foster parents believed termination was in the
children’s best interest; there were plans for the three younger children to be adopted by their
foster parents; Holliman believed Doug would also eventually be adoptable; and the witnesses
believed termination would give the children stability and permanence, the need for which is of
primary consideration. See L.R., 2018 WL 3059959, at *1; D.R.A., 374 S.W.3d at 533.
Considering this record as a whole, we cannot conclude that the evidence is legally or factually
insufficient to support the trial court’s best-interest determination. We overrule E.D.’s last issue
on appeal.
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CONCLUSION
We have overruled E.D.’s issues on appeal challenging the sufficiency of the
evidence supporting the trial court’s findings of best interest and the subsection (E) statutory
ground for termination. We therefore affirm the trial court’s decree of termination.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Baker and Triana
Affirmed
Filed: April 17, 2020
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