in the Interest of T.M., M.M., C.M., G.M., and G.M., Children ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00329-CV
___________________________
IN THE INTEREST OF T.M., M.M., C.M., G.M., AND G.M., CHILDREN
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-106560-18
Before Gabriel, Kerr and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In January 2018, the Texas Department of Family and Protective Services
(Department) initiated this proceeding to terminate the parent–child relationship
between G.M. (Father) and A.D. (Mother) and their five children—T.M. (Timothy),
M.M. (Michael), C.M. (Calvin), G.M. (Gavin), and G.M. (Gail).1 The children’s
paternal grandparents, B.D. (Grandfather) and P.D. (Grandmother), intervened,
asking the trial court to appoint them as the children’s managing conservator or,
alternatively, to award them possession of and access to the children.
After conducting a final hearing, the trial court found grounds to terminate
Father’s and Mother’s parental rights under Family Code Section 161.001(b)(1). The
trial court also found that the termination of Father’s and Mother’s parental rights was
in the children’s best interest. Based upon those findings, the trial court terminated
the parent–child relationship between Father and Mother and the children and named
the Department as the children’s managing conservator. See Tex. Fam. Code Ann.
§§ 161.001(b), .207(a). The trial court further denied all relief requested by
1
As this is a parental–rights termination case, we use aliases to refer to the
children, their parents, and their grandparents. See Tex. R. App. P. 9.8(b)(2) (requiring
appellate courts to use aliases to refer to minors in parental–rights termination cases
and, if necessary to protect the minors’ identities, to also use aliases to refer to their
parents and other family members).
2
Grandfather and Grandmother, rendered judgment that they take nothing, and
dismissed them from this suit.
Father, Grandfather, and Grandmother timely appealed from the trial court’s
order of termination.2 We affirm.
II. BACKGROUND
On January 19, 2018, shortly after Mother gave birth to her youngest child,
Gail, the Department received a referral expressing concerns over Gail’s well-being
because Mother appeared to have sustained physical injuries that would inhibit her
ability to adequately care for Gail. Tawanna Jackson, an investigator with the
Department, was assigned to investigate the referral, and she contacted staff at the
hospital where Gail had been born in order to learn more about the worries over
Gail’s welfare. By the time Jackson was able to reach out to the hospital staff,
however, Mother and Gail had been discharged and were no longer at the hospital.
Mother’s hospital records indicated that she lived at a residence located in North
Richland Hills, so Jackson went to that address in an effort to contact Mother.3 But
when Jackson arrived at the North Richland Hills residence, nobody was there, so
Jackson returned the next day, again to no avail.
2
Mother did not appeal the trial court’s termination of her parental rights.
Throughout this opinion, we refer to this specific residence simply as the
3
“North Richland Hills residence.”
3
Jackson continued her efforts to locate Mother, and at some point during her
search, Jackson learned that Mother had four other children: Timothy, Michael,
Calvin, and Gavin. Jackson’s attempts to locate Mother and her children were not
fruitful, and she still had not located them by January 22, 2018, the day the
Department received another referral indicating that Mother had been hospitalized in
Alabama as a result of an assault by Father. Mother’s medical records related to that
hospital visit reflect that Mother told hospital personnel that Father had assaulted her
in Texas over a period of hours by beating her with metal bars and rods; by biting,
kicking, and punching her; by burning her with boiling water and heated tools; and by
cutting her hair. Mother reported that she had eventually been able to escape Father’s
assault, had boarded a Greyhound bus in Dallas, and had ridden the bus to Alabama,
where she had family. An examination revealed that Mother had a fractured right
distal ulna, two fractured ribs, a traumatic subdural hematoma, a spleen laceration, and
several lumbar transverse process fractures, as well as multiple bruises, burn wounds,
bite marks, and lacerations.
The January 22, 2018 referral contained information indicating that Father’s
assault of Mother had occurred at the North Richland Hills residence. And while that
referral alerted Jackson to Mother’s location, Jackson still did not have any
information as to the children’s whereabouts. Concerned about the children’s safety,
Jackson placed them on a child-safety-check alert list. On January 23, 2018, Jackson
learned that law enforcement had located the children at a motel in Grand Prairie, and
4
she went to that location to assist with the children. When Jackson arrived, she
learned that Father, Grandfather, Grandmother, and the children were all present at
the motel and that Father, Grandfather, and Grandmother had all been placed under
arrest—Father for assaulting Mother, and Grandfather and Grandmother for failing
to report the assault.
When Jackson met with the children at the motel, they appeared to be healthy
and well fed. But with Mother in a hospital in Alabama and Father, Grandfather, and
Grandmother in the custody of law enforcement, the Department performed an
emergency removal of the children and placed them into foster care. The
Department also initiated this proceeding to terminate Father’s and Mother’s parent–
child relationship with the children. A short time after the children’s emergency
removal, Grandfather and Grandmother were released from custody pending the
resolution of charges for failure to report a felony that were filed against each of
them. Father, however, remained in custody with charges of aggravated assault and of
aggravated sexual assault pending against him.4
Jackson visited with Father regarding potential placements for the children, and
Father indicated that he wanted the children placed with Grandmother. Father also
indicated that prior to the children’s removal, he, Mother, the children, Grandfather,
4
By the time of the termination hearing, Father had pleaded guilty to the
aggravated-assault and aggravated-sexual-assault charges and had been sentenced to
twenty-five years’ confinement for each count. Grandfather’s and Grandmother’s
failure-to-report charges were still pending at the time of the termination hearing.
5
and Grandmother had been living at the North Richland Hills residence. Grandfather
and Grandmother also told Jackson that they were living at the North Richland Hills
residence. Jackson accompanied law-enforcement officers as they executed a warrant
at the North Richland Hills residence. Once inside, Jackson noticed the refrigerator
in the kitchen was “filthy” and had no food inside other than some spoiled milk.
Upon walking further into the North Richland Hills residence, Jackson noticed
that one of the downstairs bedrooms contained nothing but a mattress, which had
neither a box spring nor bedding. Another downstairs bedroom had only a box
spring and mattress, with no bedding. The living room contained only a couch, a
coffee table, a television, and a playpen, which Jackson noticed was “filthy.” When
Jackson went upstairs, she saw some of Father’s clothes, as well as blood on the
carpet near a window. Jackson also looked at the bathrooms in the residence and saw
that they were “filthy,” that they did not have any toiletries or linens inside, and that
they did not appear to be in working order. Additionally, there was no electricity or
running water at the residence.
When the children first came into the Department’s care after the emergency
removal in January 2018, Timothy was six years old, Michael was five, Calvin was
three, Gavin was one, and Gail was a newborn. According to caseworker Denise
Dull, at the time the children came into the Department’s care, they exhibited
deficiencies with respect to their expected level of educational development; Timothy
and Michael had rotting teeth; and none of the children were current on any of their
6
vaccinations. Initially, the Department placed the children across three foster homes,
but within a short time, it was able to place all five children together in the same
foster home.
Not long after the Department placed the children in foster care, Timothy
began receiving behavioral-therapy services from Angelle Harris, and during those
sessions, he made outcries that Father, Grandfather, and Grandmother had abused
him and his siblings in the North Richland Hills residence. As to Father, Timothy
told Harris that Father would beat him, that he had seen Father choke Michael, and
that Father had tried to drown one of Timothy’s younger siblings. Timothy referred
to Father as a “bad man” because, he told Harris, Father hurt him all the time.
Timothy also reported that Father abused Mother. He said that Father would
beat Mother until she was bloodied, at which point Father would place Mother in the
same room as Timothy. He also stated that Father forced Mother to do “nasty
things” with other males, and he specifically mentioned that he had witnessed Father
coerce Mother into a situation in which she was surrounded by other men’s private
parts.
Timothy’s outcries regarding Grandfather and Grandmother were that they
would beat him with wires and that he had witnessed Grandfather beat Grandmother
as well. Timothy also reported that Grandfather and Grandmother would beat
Mother. Timothy stated that Grandfather and Grandmother were in the home when
Father would beat him and that they never intervened to protect him. As he had with
7
Father, Timothy referred to Grandfather as a “bad man” because Grandfather would
beat him like Father did.
Harris also witnessed an outcry of abuse from Michael, in which he stated that
Father had choked him in the presence of Grandfather and Grandmother. And on
one occasion, Harris observed Timothy and Michael playing with one another, and as
part of their playing, Timothy demonstrated on Michael how Father had choked
Michael. Timothy and Michael also showed how Grandfather and Grandmother
would beat them with wires and other household items.
Dull witnessed outcries from the children that were in addition to the outcries
Harris witnessed. Some of those additional outcries came from Timothy, and they
again consisted of claims that Father, Grandfather, and Grandmother had abused the
children in the North Richland Hills residence. According to Dull, Timothy said that
if he and his siblings did not eat fast enough, Grandmother would dump their food
on top of their heads. He also told Dull, as he had told Harris, that Grandfather and
Grandmother had been present at times when Father had beaten him but that they
had never done anything to stop the beatings. Timothy further reported that Father
had slapped recently born Gail and that he had spit in her face. He also said that
Grandfather and Grandmother hit him.
Dull also witnessed additional outcries from Michael. He indicated to her that
a scar on his back was the result of Father stabbing him. Michael further reported
that he had witnessed Father beat and stab Mother. Michael said that Father would
8
force him and Timothy to lay on top of Mother while they were all naked, and he
further said that Father would make him and Timothy put their faces in Mother’s
private area.
Based on the children’s outcries, Dull believed that they had observed sexual
activity between adults inside the North Richland Hills residence. Observations of
that nature would constitute abuse, according to Dull, because a young child’s
exposure to sexual activity between adults can cause the child to experience emotional
trauma. A couple of things led Dull to conclude that the children had been exposed
to sexual activity between adults: Timothy reported witnessing Grandfather and
Grandmother sleeping naked next to each other in bed at the North Richland Hills
residence, and both he and Michael exhibited sexualized behaviors and sexual acting
out after the Department’s emergency removal.
With regard to the sexualized behaviors, Dull provided an example. On one
occasion, Michael told Calvin to pull Michael’s pants down and then told Calvin to
touch Michael’s private parts with his mouth. When Dull asked Michael why he had
done that, Michael responded that Father had made him perform that act on Father
and Timothy when the family lived in the North Richland Hills residence, and
Michael further indicated that this had been a normal behavior in the home.
The trial court terminated Father’s and Mother’s parental rights to all five
children and denied all relief requested in Grandfather’s and Grandmother’s petition
in intervention. Father, Grandfather, and Grandmother appealed.
9
III. DISCUSSION
A. Father’s Appeal
Father’s appointed appellate counsel has filed a brief stating that he has
conducted a professional evaluation of the record and has concluded that there are no
arguable grounds to be advanced to support an appeal by Father of the trial court’s
order terminating his parental rights and that any such appeal would be frivolous.
Father’s counsel’s brief presents the required professional evaluation of the record
demonstrating why, with respect to Father, there are no reversible grounds on appeal
and referencing any grounds that might arguably support the appeal. See Anders v.
California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d
774, 776–77 (Tex. App.—Fort Worth 2003, order) (holding Anders procedures apply
in parental-termination cases), disp. on merits, No. 2-01-349-CV, 2003 WL 2006583
(Tex. App.—Fort Worth May 1, 2003, no pet.) (mem. op.). Further, Father’s counsel
informed Father of his right to request the record and to file a pro se response. See
Kelly v. State, 436 S.W.3d 313, 318–20 (Tex. Crim. App. 2014). In addition, this court
informed Father of these rights and gave him the opportunity to notify this court of
his intent to respond. Father has not filed a response. The Department has notified
this court that it agrees with Father’s counsel that Father has no grounds assailing the
trial court’s order of termination.
In reviewing a brief that asserts an appeal is frivolous and that fulfills the
requirements of Anders, this court is obligated to undertake an independent
10
examination of the record to determine if any arguable grounds for appeal exist. See
In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied) (citing
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)). Having carefully
reviewed the record, Father’s counsel’s brief, and the Department’s response, we
conclude that there are no arguable grounds for reversal of the trial court’s order
terminating Father’s parental rights; thus, we agree with Father’s counsel that Father’s
appeal is without merit. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009,
pet. denied). We will therefore affirm the trial court’s order of termination as to
Father. See Tex. R. App. P. 43.2(a). Counsel has a continuing duty to represent
Father until he has exhausted his proceedings, including possibly filing a petition for
review in the supreme court. See In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016); In re
D.T., No. 02-17-00061-CV, 2017 WL 2806323, at *1–3 (Tex. App.—Fort Worth
June 29, 2017, no pet.) (mem. op.).
B. Grandfather’s and Grandmother’s Appeal
In their challenges to the trial court’s termination order, Grandfather and
Grandmother both present the same, single issue.5 They claim that the trial court
abused its discretion by naming the Department as the children’s permanent
managing conservator. They contend that the trial court should have instead named
5
Grandfather and Grandmother filed separate briefs, but those briefs are
identical in nearly every respect; thus, we will address their issues together.
11
them as the children’s managing conservator because the evidence conclusively shows
that arrangement was in the children’s best interest.
1. Applicable law and standard of review
The Texas Family Code creates a rebuttable presumption that a parent will be
named a child’s managing conservator unless the court finds that such appointment
would not be in the child’s best interest “because the appointment would significantly
impair the child’s physical health or emotional development.” Tex. Fam. Code Ann.
§ 153.131(a). But here, the trial court terminated the parent–child relationship of both
parents. In such cases, “the court shall appoint a suitable, competent adult, the
Department of Family and Protective Services, or a licensed child-placing agency as
managing conservator of the child.” Tex. Fam. Code Ann. § 161.207(a); see In re R.H.,
No. 05-19-00635-CV, 2019 WL 4875334, at *5 (Tex. App.—Dallas Oct. 3, 2019, no
pet.) (mem. op.).
Termination of parental rights and appointment of a non-parent as sole
managing conservator are two distinct issues, differing in elements, standards of
proof, and standards of review. See In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007).
Compare Tex. Fam. Code Ann. § 161.001, with id. § 153.131(a). Unlike the facts
necessary to support termination of parental rights, the facts necessary to appoint a
non-parent as sole managing conservator need be established by a mere
preponderance of the evidence. See Tex. Fam. Code Ann. § 105.005; J.A.J.,
243 S.W.3d at 616; In re W.M., 172 S.W.3d 718, 724 (Tex. App.—Fort Worth 2005, no
12
pet.). Likewise, the standard of review for the appointment of a non-parent as sole
managing conservator is less stringent than the standard of review for termination of
parental rights. J.A.J., 243 S.W.3d at 616. We review a trial court’s appointment of a
non-parent as sole managing conservator for an abuse of discretion only. Id.; W.M.,
172 S.W.3d at 724. Therefore, we may reverse the trial court’s appointment of a non-
parent as sole managing conservator only if we determine the appointment is arbitrary
or unreasonable. J.A.J., 243 S.W.3d at 616; In re L.G.R., 498 S.W.3d 195, 207 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied); W.M., 172 S.W.3d at 724–25.
Under an abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds for review, but they are relevant factors in deciding whether an
abuse of discretion occurred. In re E.P.C., 381 S.W.3d 670, 687 (Tex. App.—Fort
Worth 2012, no pet.) (citing W.M., 172 S.W.3d at 725). In determining whether there
has been an abuse of discretion because the evidence is legally or factually insufficient
to support the trial court’s decision, we engage in a two-pronged inquiry: (1) did the
trial court have enough information upon which to exercise its discretion; and (2) did
the trial court err in applying its discretion? W.M., 172 S.W.3d at 725. The traditional
sufficiency review comes into play with regard to the first question. Id. With regard
to the second question, we determine, based on the elicited evidence, whether the trial
court made a reasonable decision. Id.
The primary consideration in determining issues of conservatorship is the best
interest of the child. Tex. Fam. Code Ann. § 153.002; W.M., 172 S.W.3d 725. In
13
determining a child’s best interest in the context of a conservatorship decision, courts
may use the list of Holley factors. See W.M., 172 S.W.3d at 725 (citing Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976)); In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—
Fort Worth 2002, pet. denied); Long v. Long, 144 S.W.3d 64, 68 (Tex. App.—El Paso
2004, no pet.). Those factors include:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best
interest of the child;
(6) the plans for the child by these individuals or by the agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the
existing parent–child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley, 544 S.W.2d at 372; W.M., 172 S.W.3d at 725–26. These factors are not
exhaustive; some of them may be inapplicable in specific cases, and courts may
consider others not on the list when appropriate. See W.M., 172 S.W.3d at 725.
14
2. Analysis
At the outset, we note that there is no presumption favoring a grandparent
over other non-parents in determining conservatorship. In re A.C., 394 S.W.3d 633,
644 (Tex. App.—Houston [1st Dist.] 2012, no pet.). With that in mind, and
considering the evidence elicited at the termination hearing in light of the relevant
Holley factors, we conclude the trial court did not abuse its discretion by appointing
the Department, rather than Grandfather or Grandmother, as the children’s managing
conservator upon terminating Father’s and Mother’s parental rights.
a. The emotional and physical needs of the children and the emotional
and physical danger to the children
We begin with these Holley factors given the considerable evidence indicating
that while the children were living in the North Richland Hills residence, Grandfather
and Grandmother subjected them to a pattern of conduct that endangered their
physical and emotional welfare. Grandfather and Grandmother suggest that evidence
of past conduct toward a child is not relevant when assessing these factors. But that
is not so. Evidence of a person’s past misconduct or neglect can be used to measure
that person’s future conduct. See In re B.P.E., No. 01-16-00561-CV, 2016 WL
6803355, at *8 (Tex. App.—Houston [1st Dist.] Nov. 17, 2016, pet. denied) (mem.
op.); In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied). Thus, in
weighing these Holley factors, the trial court was entitled to consider any evidence
reflecting that when Grandfather and Grandmother had access to the children in the
15
past, they engaged in a pattern of conduct that endangered the children’s physical and
emotional well-being.
And the record contains a litany of evidence that Grandfather and
Grandmother endangered the children. In particular, there was evidence that
Grandfather and Grandmother physically abused the children, as well as evidence that
the children witnessed violence involving Grandfather and Grandmother. See In re
J.S.-A, No. 01-17-00491-CV, 2018 WL 891236, at *8 (Tex. App.—Houston [1st Dist.]
Feb. 15, 2018, pets. denied) (mem. op.) (“Evidence of domestic violence in the home
supports a finding that placement with the parent is likely to subject the child to
emotional and physical danger now and in the future.”); In re A.K., Nos. 07-17-00353-
CV, 07-17-00354-CV, 2018 WL 912703, at *5 (Tex. App.—Amarillo Feb. 15, 2018,
pet. denied) (mem. op.) (“A child’s exposure to domestic violence in the home is
relevant when considering best interest.”); B.P.E., 2016 WL 6803355, at *8. We
discuss each of those categories in turn.
Although the children did not testify at the hearing, evidence of their outcries
was admitted through other means, including the testimony of Harris and Dull, who
testified about Timothy’s and Michael’s outcries; a copy of forensic interviews that
had been performed on Timothy and Michael; testimony from Department
investigator Jessie Davis about an investigation she conducted that included outcries
from Timothy and Michael; and testimony from both Dull and one of the
Department’s conservatorship supervisors, Lauren Robinson, regarding the
16
Department’s opposition to Grandfather’s and Grandmother’s request for
conservatorship of the children.
In setting forth the background of this case above, we outlined Timothy’s and
Michael’s outcries of abuse, and we need not duplicate the substance of those outcries
here. But we do highlight some additional evidence that relates to Grandfather’s and
Grandmother’s endangering conduct. Specifically, we note that Timothy told the
forensic interviewer that Grandfather would beat him with a belt all over his body and
that Grandfather and Grandmother would beat him with sticks on his arms and legs.
Additionally, Davis testified that based on Timothy’s and Michael’s forensic
interviews, the Department reached a “reason to believe” disposition against
Grandfather and Grandmother for physical abuse of Timothy and Michael. Dull
opined that based on the children’s outcries and her experience as a caseworker, she
believed the children would be in physical and emotional danger if the trial court
placed them with Grandfather and Grandmother. And Robinson testified that the
Department opposed Grandfather’s and Grandmother’s request for conservatorship
in part because of the children’s outcries that Grandfather and Grandmother had
physically abused them.
Grandfather and Grandmother attempt to discredit the evidence showing they
physically abused the children by suggesting that it is unclear whether the children’s
outcries conveyed real, as opposed to imagined or dreamed, experiences. They point
to a portion of Harris’s testimony that Grandmother elicited on cross-examination in
17
which Harris agreed that because she is not a licensed child psychologist, she could
not know whether Timothy’s outcries of abuse conveyed real experiences:
Q. You’re not a licensed child psychologist either.
A. No.
Q. So we really don’t know where these things that [Timothy] was
telling you came from, whether they were imagination, what some
adult told him, something he really witnessed, a dream, or [a]
combination of [the] above; right?
A. Yes.
To the extent that Grandfather and Grandmother contend that this isolated portion
of one witness’s testimony conclusively negates a finding that they physically abused
the children, we disagree. To begin, Grandfather and Grandmother present this
exchange shorn from its relevant context, resulting in an incomplete and inaccurate
picture of Harris’s testimony. For example, on redirect, Harris confirmed that based
upon her observations as Timothy’s behavioral therapist, she believed his outcries had
described real experiences:
Q. Did you observe anything in your interactions with [Timothy] that
would support [Grandmother’s] contention that this may have
been imaginary or misremembered?
A. [Timothy’s], often during each session when talking about his
feelings, very tearful. And, right now, he’s experienced
incontinence. So, yes.
Q. So you believe them to be true?
A. Yes.
18
Q. True experiences?
A. Yes.
Additionally, the isolated portion of Harris’s testimony that Grandfather and
Grandmother rely upon to show that they did not physically abuse the children does
not erase all the other evidence in the record concerning that issue. In other words, at
most, the portion of Harris’s testimony upon which Grandfather and Grandmother
rely to show they did not physically abuse the children conflicts with other evidence,
including other portions of Harris’s testimony, showing that they did. And as fact-
finder here, the trial court could have resolved that conflict by believing the evidence
showing that Grandfather and Grandmother physically abused the children, which is a
determination that we may not second-guess. See Bush v. Bush, 336 S.W.3d 722, 730
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (“In a bench trial, the trial court is the
sole judge of the credibility of the witnesses, assigns the weight to be given their
testimony, may accept or reject all or any part of their testimony, and resolves any
conflicts or inconsistencies in the testimony.” (quoting Rich v. Olah, 274 S.W.3d 878,
884 (Tex. App.—Dallas 2008, no pet.)).
The record also contains evidence that the children were exposed to violence
involving Grandfather and Grandmother in the North Richland Hills residence.
Harris testified that Timothy indicated that he had witnessed Grandfather beating
Grandmother, as well as both Grandfather and Grandmother beating Mother.
During his forensic interview, Michael stated that he had witnessed Grandfather
19
fighting with Father. And Timothy indicated during his forensic interview that he had
seen Grandmother grab a knife and threaten to cut Mother’s neck.
Although a large portion of the evidence we have outlined above references
specific acts of abuse that Grandfather and Grandmother committed against Timothy
and Michael, that evidence nevertheless supports a finding that granting Grandfather’s
and Grandmother’s request for conservatorship as to Calvin, Gavin, and Gail would
endanger their physical and emotional well-being just as it would Timothy’s and
Michael’s. See In re A.W.B., No. 14-11-00926-CV, 2012 WL 1048640, at *6 (Tex.
App.—Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem. op.) (noting that evidence
that a child’s parent abused the child’s seven other siblings can support a finding that
returning the child to the parent could result in emotional and physical danger to the
child); cf. In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *11 (Tex. App.—
Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.) (noting that “the physical
abuse of one child in the home supports a finding of endangerment as to the other
children also present in the home.”); In re J.W.M., 153 S.W.3d 541, 548 (Tex. App.—
Amarillo 2004, pet. denied) (“The evidence offered to prove the grounds for
termination is also relevant in determining if termination is in the children’s best
interest”). We also reiterate that Dull testified that the physical and emotional well-
being of all five of the children would be endangered if they were placed with
Grandfather and Grandmother. And Robinson testified that the Department
20
opposed giving Grandfather and Grandmother conservatorship over any of the
children based on the outcries of abuse against them.
In contrast to the substantial evidence reflecting that Grandfather and
Grandmother posed a danger to the children’s physical and emotional well-being,
Grandfather and Grandmother do not assert, let alone refer us to any evidence
showing, that the Department posed any such risk. Given the evidence adduced at
the termination hearing, the trial court could have reasonably concluded that these
factors weighed heavily in favor of a finding that naming the Department, rather than
Grandfather and Grandmother, as the children’s managing conservator was in the
children’s best interest.
b. Parenting abilities of Grandfather and Grandmother; stability of the
home; and the acts or omissions of Grandfather and Grandmother
In this case, these three Holley factors are closely related to the previous two.
As we have noted, the evidence reflects that during the Department’s investigation
throughout this case, Father, Grandfather, and Grandmother reported that prior to
the children’s removal, Father, Mother, Grandfather, Grandmother, and the children
all lived together at the North Richland Hills residence. We described above some of
the evidence showing that the children were both physically abused by Grandfather
and Grandmother and exposed to violence involving Grandfather and Grandmother
while residing in that home. But there is also evidence that Grandfather and
Grandmother failed to protect the children from significant abuse Father inflicted
21
upon them and Mother in the home. Cf. In re O.E.R., 573 S.W.3d 896, 908 (Tex.
App.—El Paso 2019, no pet.) (noting that trial court could have weighed acts-or-
omissions Holley factor in favor of termination based on evidence showing mother
repeatedly exposed children to domestic violence by engaging in multiple relationships
with men who physically abused her); In re R.J., 579 S.W.3d 97, 116 (Tex. App.—
Houston [1st Dist.] 2019, pet. denied) (noting that evidence of domestic violence in
the home is relevant to the parenting-abilities and stability-of-the-home Holley factors).
We need not repeat the evidence of Father’s abuse of the children that we have
already referenced in setting out the background of this case. In addition to that
evidence, the record shows that during their respective forensic interviews, Timothy
and Michael described acts of abuse that Father inflicted upon them. Michael stated
that Father forced him to say, “I hate you mama,” and then hit him in the nose with a
shoe. Timothy stated that he saw blood coming from Michael’s nose after Father hit
Michael with a shoe. Timothy reported that Father hit him with a wire, a bar, and a
broom, and he showed the forensic interviewer marks and bruises on his arm that had
resulted from Father’s hitting him with the broom. And as previously noted, in
speaking with Harris, Timothy referred to Father as a “bad man” because Father hurt
him all the time.
As to the children’s exposure to Father’s physical abuse of Mother in the North
Richland Hills residence, the evidence includes Mother’s hospital records, which, as
we have already outlined, reflect that she sustained multiple, serious injuries as a result
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of an assault by Father shortly after Gail was born. In addition, the trial court
admitted two judgments of conviction reflecting that Father was convicted of
aggravated assault and aggravated sexual assault against Mother. Further, during his
forensic interview, Michael stated that he had witnessed Father hit Mother in the face
with a wire, with a broom, and with his hand in the North Richland Hills residence
and that Mother had to wipe blood from her face. During his forensic interview,
Timothy stated that Father would jump on Mother’s head, that Father would elbow
Mother in the mouth, that Father would hit Mother with a needle and a board, and
that Father would burn Mother with cigarettes until her eyes rolled in the back of her
head. Timothy further reported that he saw blood all over the house.
In light of the above, the trial court could have reasonably concluded that
Grandfather and Grandmother were aware of Father’s abuse of the children, as well
as the children’s exposure to Father’s abuse of Mother, but did nothing to protect the
children from it. Additionally, according to Grandmother’s testimony, she and
Grandfather were the ones who had actually raised the children, not Father and
Mother. The trial court could have considered that testimony and weighed it in light
of Jackson’s testimony that when she went inside the North Richland Hills residence,
it was filthy, had no running water or electricity, did not have a functioning bathroom,
was not properly stocked with food, and did not have sufficient bedding for the four
adults and five children who were living there. And based on its weighing of that
evidence, the trial court could have reasonably concluded that Grandfather and
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Grandmother had not demonstrated an ability to adequately parent the children or to
provide them with a stable home.
We conclude that the trial court could have reasonably found that the
parenting-abilities, stability-of-the-home, and acts-or-omissions factors all weighed in
favor of a finding that naming the Department, rather than Grandfather and
Grandmother, as the children’s managing conservator was in the children’s best
interest.
c. Children’s desires
Although none of the children testified at the termination hearing, and
although some of the children were too young to directly voice their desires
concerning conservatorship, there was other evidence that the trial court could have
considered when analyzing the children’s desires with respect to conservatorship. For
example, when Dull asked Timothy if he felt connected to Grandfather and
Grandmother, he said he did not. Conversely, when Dull asked Timothy to name the
people he felt connected to, he replied that he felt connected to his foster parents, to
his CASA worker,6 and to Dull, and when Dull asked him why, he said, “Because I’m
not in that bad place anymore.” Dull also testified that when she asked the children
where they wanted to live, “they said they wanted to stay in [their foster home]
6
“CASA” stands for “court-appointed special advocate.” See In re I.D.J., No.
02-11-00367-CV, 2012 WL 2135579, at *3 (Tex. App.—Fort Worth June 14, 2012, no
pet.) (mem. op.).
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because it’s safe and they liked it there and they did not get hit.” When explaining
why the Department believed termination of Father’s and Mother’s parental rights
and denial of Grandfather’s and Grandmother’s request for conservatorship was in
the children’s best interest, Dull stated the reason was because the children had
“expressed that they want[ed] to be in a loving family that doesn’t hurt them.” And
the children’s foster mother testified that the children called her “mom.” Based on
this evidence, the trial court could have reasonably found that this factor weighed in
favor of a finding that naming the Department, as opposed to Grandfather and
Grandmother, as the children’s managing conservator was in their best interest.
d. Plans for the children
Grandfather and Grandmother assert that their plans for the children in the
event that they were awarded conservatorship demonstrate that appointing them as
the children’s managing conservator was in their best interest. They point to
Grandmother’s testimony that she planned to enroll Timothy and Michael in school
once Michael was old enough because she wanted both children to attend school
together. They also point to Grandmother’s testimony that the children are Romani
and that she planned to raise them in the Romani culture. And they assert that the
children could remain together if they were placed with them.
Despite Grandmother’s testimony, however, the trial court did not have to
conclude that Grandfather’s and Grandmother’s plans for the children were in the
children’s best interest, particularly when weighed against the Department’s plans.
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Grandmother testified that she planned to enroll Timothy and Michael in school in
the future. The trial court could have viewed this testimony with a high degree of
skepticism based on the evidence showing that Grandmother had never enrolled any
of the children in school despite the fact that, according to her own testimony, she
and Grandfather were the ones who were actually raising the children. This stands in
contrast to the testimony of the children’s foster mother, who testified that while
living with their foster family, Timothy and Michael had been attending school and
were doing “really good” at it.
Additionally, as noted, the Department had placed the children together in the
same foster home, and they had been living there for nearly a year before the
termination hearing. While in the foster home, Timothy, Michael, Calvin, and Gavin
had received therapeutic services that included trauma therapy, behavioral therapy,
psychiatric services, trauma-based relationship intervention, and speech therapy.
According to Robinson, the Department planned for an unrelated adoption of the
children together as a sibling group of five, and the children’s foster mother testified
that she and her husband would consider adopting the children if that became an
option. Further, Robinson testified that the children would need to continue
receiving trauma counseling, behavioral therapy, and trauma-based relationship
intervention in the future. Robinson stated that the children were receiving those
services in the foster home, indicating that the foster family was adequately meeting
the children’s therapeutic needs and would continue to do so in the future. And
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Robinson confirmed that the Department would provide those services to the
children in the future in the event the children were adopted.
In light of the above, we conclude that the trial court could have reasonably
determined that this factor weighed in favor of its finding that naming the
Department, rather than Grandfather and Grandmother, as the children’s managing
conservator was in the children’s best interest.
e. Children’s culture
Finally, though it is not among the Holley factors, Grandfather and
Grandmother assert that the fact that the children are Romani should weigh in favor
of awarding conservatorship to their Romani grandparents, who can raise them in a
manner consistent with Romani culture. In doing so, Grandfather and Grandmother
analogize their family’s Romani culture to the unique considerations at issue in child
custody cases involving an Indian child, to which the Indian Child Welfare Act
(ICWA) applies. See 25 U.S.C.A. § 1912(a). They suggest that for the same reasons
ICWA provides special considerations in child custody cases involving Indian
children, they should be awarded conservatorship of the children so they can be raised
in their Romani culture.
We decline Grandfather’s and Grandmother’s invitation to analogize this case
to one involving an Indian child. ICWA is a federal statute, and Grandfather and
Grandmother have cited us to no analogous statute providing similar protections in
child custody cases involving children from a Romani background. Further,
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Grandfather and Grandmother have cited us to no authority supporting the notion
that in cases like this one, in which both parents’ parental rights have been terminated,
a non-Indian child’s cultural background should be given conclusive weight in the trial
court’s conservatorship decision such that the trial court must award a non-parent
family member conservatorship of the child without regard to its analysis of the other
factors relevant to a best-interest determination. Here, even considering the
children’s Romani background, the trial court could reasonably have concluded, based
on the factors discussed above, that naming Grandfather and Grandmother as the
children’s managing conservator was not in the children’s best interest.
f. Summary
Having considered the record in light of the applicable Holley factors, we
conclude that the trial court had enough information upon which to exercise its
discretion and that it did not err in exercising that discretion by finding that
appointing the Department, rather than Grandfather and Grandmother, as the
children’s managing conservator was in the children’s best interest. Accordingly, the
trial court did not abuse its discretion by naming the Department as the children’s
managing conservator. See W.M., 172 S.W.3d at 725. We overrule Grandfather’s and
Grandmother’s sole issues.
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IV. CONCLUSION
Having agreed with Father’s counsel that Father’s appeal is frivolous, and
having overruled Grandfather’s and Grandmother’s sole issues, we affirm the trial
court’s order of termination. See Tex. R. App. P. 43.2(a).
/s/ Dana Womack
Dana Womack
Justice
Delivered: February 3, 2020
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