in the Interest of K.T., a Child ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00392-CV
IN THE INTEREST OF K.T., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-98700J-13
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MEMORANDUM OPINION 1
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In two issues, appellant M.N. (Mother) appeals the trial court’s order
terminating her parental rights to five-year-old K.T. (Kyle). 2 She contends that
the evidence is legally and factually insufficient to show that termination is in
Kyle’s best interest and that the trial court abused its discretion by naming the
1
See Tex. R. App. P. 47.4.
2
To protect the anonymity of children connected to this appeal, we use
aliases to refer to them and to other people associated with the appeal. See Tex.
Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
Texas Department of Family and Protective Services (the Department) as Kyle’s
permanent managing conservator. We affirm.
Background Facts
When Mother was a child, she witnessed domestic violence between her
mother and her stepfather, an experience that was traumatic for her. Mother was
raped when she was sixteen years old. She was also physically abused by her
father as a child.
In 2007, when Mother was approximately twenty-one years old and living
in New Mexico, she met K.T. (Father). She began living with him and eventually
conceived Kyle with him. Mother and Father had physical and verbal fights that
resulted in the police being called. When Mother was nine months pregnant with
Kyle, her argument with Father resulted in the police’s presence at their
residence, and Father was arrested.
Mother gave birth to Kyle in January 2009. Weeks later, in March 2009,
Mother discovered that Father was cheating on her. She and Father began to
fight. During the fight, Mother was holding Kyle, and Father began beating her.
When Father attempted to take Kyle out of Mother’s arms, he broke Kyle’s arm.
Mother grabbed Kyle and began to run, but Father chased her. Mother then put
Kyle down, and Father beat her again until his cousin arrived at the residence.
Father was confined based on that incident. 3
3
A New Mexico grand jury indicted Father for abusing Kyle. Father pled no
contest to the felony offense, and a court convicted him, sentenced him to three
2
Although Mother’s aunt, L.G. (Laura), who lives in New Mexico, believed
that Kyle would not be safe around Father and told Mother to stay away from
Father after that incident, Mother began living with him again after his release
from confinement. Mother consistently fought with Father in front of Kyle. In
October 2009, Father again beat Mother. During another incident, he threw her
phone into a street and broke it. As late as September 2010, Mother was still
living with Father and having domestic disputes with him.
Mother told the police that she and Father had several more physical
altercations that she did not report. Laura testified that Mother “forgave [Father],
and she went back to him a few times.”
In February 2011, to get away from Father, Mother moved to San Antonio
and began financially supporting herself. She testified that she did so because
she feared for Kyle and “knew [she] wasn’t strong enough to stay in New Mexico
if [Father] were to get out of prison.” During part of the time that Mother lived in
San Antonio, Kyle lived with Laura and her husband (Mother’s uncle), V.G.
(Victor).
In February 2013, Mother and Kyle moved to Arlington to live with her
boyfriend, D.R. (Daniel), whose parents live in New Mexico. Laura and Victor
met Daniel and believed that he was respectable.
years’ confinement, and suspended imposition of part of the sentence so that
Father could be placed on supervised probation. Father later claimed that Kyle’s
broken arm was Mother’s fault. He said that he and Mother were having an
argument and that she kicked him, which caused him to drop Kyle.
3
In the middle of June 2013, Mother began noticing some injuries on Kyle.
By June 26, 2013, Kyle’s injuries had cleared up significantly. On June 27, 2013,
when Mother left for work, Kyle appeared normal. But when Mother came home
from work that day, she found Kyle with an assortment of injuries, including
bruises to his stomach and face and a bite mark on his thigh. Mother believed
that his babysitter had injured him and took him to a hospital. Laura asked
Mother whether Daniel, who was living with Mother at the time, could have
abused Kyle, and Mother stated that she did not believe that he could have done
so.
Sylvia Anderson, who was working as a night response investigator with
the Department, received a report about Kyle’s injuries and went to the hospital
to assess them. At the hospital, Mother cooperated with the investigation; she
told Anderson about her and Kyle’s history of abuse with Father and stated that
Kyle had been with Daniel on that day. But Mother told Anderson that the “only
person that could [have] hurt [Kyle was] the babysitter.”
Anderson noticed that Kyle had bruises in different stages of healing from
head to toe, swollen eyes, a busted lip, and a bite mark on his left thigh.
Anderson asked Kyle whether anyone had ever hit him. Kyle lowered his head
“and stated that [Daniel had] hit[] him when he [got] mad and that [Mother had
4
stated that] if anybody asked what happened to him to tell them that he fell.” 4
Anderson spoke with Daniel, who seemed nervous and agitated before ending
the interview and leaving the room. When Anderson told Mother about Kyle’s
statement that Daniel had hit him, Mother “said that there was no way that
[Daniel] could have done [that].” The Department removed Kyle from Mother’s
custody. Mother continued living with Daniel.
Jeremy Dickinson, one of the Department’s employees, investigated Kyle’s
injuries after his removal from Mother’s custody. Mother told him that Kyle had
been staying with a babysitter on some days in June 2013 and that one day
when she had picked him up from there, she had noticed a rash under his eyes
and a bruise under his chin. Mother also said that later that month when Kyle
had spent time with the babysitter, she had picked him up and had not noticed
any bruises or marks. Mother told Dickinson that on June 27, she had left Kyle in
Daniel’s care for an entire day when she went to work, and when she returned
home, Kyle’s face had become swollen enough for her to take him to a children’s
hospital. According to Mother’s statement to Dickinson, on the way to the
emergency room, Daniel began having an anxiety attack, so she went to a
4
Mother denied that she ever told Kyle to say that he fell; instead, she
testified that she had “asked him what happened[,] and [he had] told [her] he fell
down.”
5
general hospital that could treat both Kyle and Daniel. 5 In response to
Dickinson’s questioning, Mother denied that Daniel could have been responsible
for Kyle’s injuries.
The Department filed a petition that asked the trial court to terminate
Mother’s and Father’s parental rights to Kyle if reunification could not be
achieved. The Department attached an affidavit to the petition that detailed
Kyle’s injuries, including that his face had been “pummeled.” The same day that
the Department filed its petition, the trial court entered an order naming the
Department as Kyle’s temporary sole managing conservator. Later, after holding
an adversary hearing, 6 the trial court continued its appointment of the
Department as Kyle’s managing conservator.
Soon after Kyle’s removal, Mother visited him at a Child Protective
Services (CPS) office in Arlington. By that time, Dickinson had told Mother about
Kyle’s statements identifying Daniel as his abuser. According to Dickinson, at
the end of that visit, without any prompting, Kyle said, “Mommy, [Daniel] hurt me
and hit me,” and he began crying. After the visit ended, while crying, Mother told
5
Mother testified that she had never stated that Daniel had an anxiety
attack. Instead, she testified that she had persuaded Daniel to seek treatment
for anxiety after they arrived at the hospital.
Two weeks after he abused Kyle, Daniel had a seizure and was admitted
to a hospital, where he stayed for a couple of weeks. Months later, Daniel
returned to the hospital to have brain surgery.
6
See Tex. Fam. Code Ann. § 262.201(a) (West 2014).
6
Dickinson that she believed Kyle but that she “just [couldn’t] believe that [Daniel]
would do that.” Mother made similar statements to Dickinson on other
occasions. After Dickinson contacted the babysitter, he believed that she could
not have been responsible for Kyle’s injuries.
Dickinson believed that Mother was “more supportive of [Daniel] than
[Kyle]”; he did not believe that Mother “fully supported her . . . physically abused
son.” Dickinson concluded that Mother had neglectfully supervised Kyle because
there were old and new bruises that Mother had overlooked.
Days after Kyle’s removal, Victor wrote a letter to the “Texas court system”
attesting to Daniel’s character. The letter stated that Daniel had showed “tender
loving care” to Kyle and that Daniel was a “calm, gentle[,] and respectful young
man.” Victor wrote that Daniel had never demonstrated anger or uncontrolled
emotions and that Daniel would never deliberately hurt anyone, and he urged an
investigation to find the “true culprit” of Kyle’s abuse.
Mother continued to visit Kyle every two weeks from July 2013 through the
middle of November 2013. According to Concepcion Martinez, Mother’s first
caseworker, the visits went well; Mother interacted with Kyle and prayed with
him. From watching the visits, it became evident to Martinez that Kyle loved
Mother. 7 Mother asked Martinez if Daniel could attend the visits, and Martinez
7
Mother was not satisfied with Martinez’s work as a caseworker; she
complained about Martinez’s unprofessionalism and refusal to return phone calls.
Martinez testified that Mother regularly called her and left messages. Laura
testified that Martinez placed “stumbling blocks” that led to the Department’s
7
explained that it would be inappropriate for Daniel to do so because Kyle had
named Daniel as his abuser.
In July 2013, Mother brought Daniel to a hearing concerning Kyle’s
custody. By August 2013, Mother still believed that there was only a “possibility”
that Daniel was the person who had abused Kyle. Martinez presented a service
plan to Mother that month; Martinez described the purpose of the plan as helping
Mother eliminate the risk that led to Kyle’s removal from Mother’s care. At that
time, Mother was still in a relationship with Daniel and was residing with him, so
Martinez also prepared a service plan for him. Mother eventually completed all
of the services in the plan, including anger management, counseling, and classes
aimed at stopping domestic violence.
While Mother was living with Daniel in Texas after Kyle’s removal, she had
sex with him a few times. Mother moved back to New Mexico in November 2013
in what she testified was an attempt to get away from Daniel. 8 By that time, she
and Daniel had conceived a child. Mother gave birth to M.R. (Michael), in
December 2013.
decision to seek termination of Mother’s parental rights. According to Laura,
Mother and Martinez shared fault for the Department’s goal of terminating
Mother’s parental rights. Mother testified that when she spoke with Martinez,
Martinez twisted her words or made her feel threatened. She opined that
Martinez was “always . . . against [her].” Martinez was mother’s first caseworker,
but she no longer worked for the Department at the time of trial.
8
Laura testified that she and Victor encouraged Mother to return to New
Mexico in November 2013.
8
Mother did not attend a visit with Kyle in December 2013 or January 2014.
Thus, when she traveled from New Mexico to Texas to attend a visit in February
2014, she had not seen Kyle in approximately three months. Martinez advised
Mother that after she moved back to New Mexico, she could maintain contact
with Kyle through seeing him on the Internet. But according to Martinez, Mother
did not maintain consistent contact with Kyle that way. Mother missed a court
hearing in January 2014; she testified that she did not receive notice of the
hearing from the Department or her attorney and that she would have attended
the hearing had she known about it.
In January 2014, the trial court received a progress report in which the
Department stated that its primary goal was Kyle and Mother’s reunification. The
report explained that Mother had completed many of the requirements of her
service plan and had regularly visited Kyle.
Laura and Victor wanted to adopt Kyle, so they participated in an in-depth
home study and obtained a foster care license. Laura and Victor cared for
several foster children, including some children less than two months before trial.
In February 2014, Kenyatti Tricksey, a CPS supervisor, received the completed
home study of Laura and Victor’s residence in New Mexico. While Tricksey was
not concerned about any details in the home study, she declined to place Kyle
with Laura and Victor because she was not convinced that they believed Kyle’s
outcries that named Daniel as his abuser. Specifically, based on Tricksey’s
9
conversation with Laura, Tricksey believed that Laura “wanted to continue to
defend [Daniel’s] credibility and his character.” Tricksey explained at trial,
The home study was beautifully written. The contractor did a great
job documenting the conversation, I believe, and the visits to the
home. My concerns stem from conversations outside of the home
study with the family and the fact that this child would be many,
many hours away from Texas and that we couldn’t be able to go out
and talk with him or visit with him as often as we would like,
considering the fact that we had potential . . . caregivers that were
kind of straddling the fence on whether or not they believed what
happened to him happened the way it did.
Tricksey never met with Laura and Victor in person, and she never visited their
home in New Mexico. She recognized at trial that Laura and Victor are
responsible and that they do not have a criminal history, and she conceded that
the New Mexico authorities who had completed the home study gave Laura and
Victor “glowing reviews.” 9
In February 2014, Laura sent an e-mail to Kyle’s Court Appointed Special
Advocate (CASA), Dianne Ward, because she was not convinced that Daniel had
abused Kyle, and she wanted to support Daniel. The e-mail stated,
Pictures of [Kyle]. I hope you don’t think that I overdid it,
someone needs to see . . . what we have seen. My niece has tons
of more pictures . . . like these. The few months that they were in
Arlington were the happiest we have seen both my niece and [Kyle].
On [F]ather’s Day of last year my niece called me to tell me that
[Kyle] had called [Daniel] “Dad.” We both cried together knowing
that [Kyle] had lots of love for [Daniel]. We have been told that this
9
The home study classified Victor as “articulate, engaging, intelligent,
passionate[,] and strong.” It described Laura in similar terms. It explained that
Victor and Laura had been married for sixteen years and that they had no
criminal history or substance abuse issues.
10
man was beating on [Kyle] for a very long time every day, yet these
picture[s] . . . show nothing like that.
To the e-mail, Laura attached several pictures of Daniel and Kyle together.
Laura testified that when she sent this e-mail, she was not sure whether Daniel
had abused Kyle. On one occasion when Ward approached Laura about Kyle’s
statements naming Daniel as his abuser, she said, “Words from a child can be
misunderstood.” 10
Upon her move back to New Mexico, Mother told Martinez that she and
Daniel were no longer in a relationship. But Daniel eventually followed Mother
there. In February 2014, Mother had sex with Daniel. She testified that she did
not want to have sex with him, explaining,
He went to go visit his son. He put [Michael] down to sleep, and I
expected he was going to leave my home, and he kept bugging me
because he wanted to have sex, because I hadn’t had sex with him
in a very, very long time. And he kept bugging me and I gave in . . . .
I didn’t want to have sex with him, but I’ve been raped before, and I
don’t want to go through that again. . . . I just figured it’s easier to
just give in. I was raped when I was 16. And I didn’t want to have
sex with him, but . . . I didn’t want to relive that again.
Mother did not tell Martinez about her claim that Daniel had pressured her into
having sex with him in February 2014; she explained at trial that she was
ashamed and did not want anyone to know that Daniel was doing so.
10
Laura explained at trial that a previous incident with her son, when he
was two or three years old, had taught her that children may claim to be abused
because they are coached or because they see “[something] on television.”
11
In March 2014, Daniel went to Mother’s apartment in New Mexico while
wanting to see Michael. Mother let him spend the night on a sofa. The next
morning, Mother saw a pipe in Daniel’s pocket and told him to leave the
apartment. In response, he threw a rock at her window and broke it. Michael
was asleep during this incident. When Mother told Laura about what had
occurred, Laura became angry because she had instructed Mother to not allow
Daniel to stay at the apartment. New Mexico police arrested Daniel.
At trial, Mother recognized that allowing Daniel to visit her and Michael at
her apartment in March 2014 was not a good idea. But she also conceded that
soon after this incident, she took Michael to visit Daniel, who was still confined in
jail. Mother conceded at trial that taking Michael, who was three months old, to
visit Daniel at the jail was likewise not a good idea. Daniel was eventually
transferred to a Tarrant County jail to face charges for abusing Kyle.
Regarding the March 2014 incident between Mother and Daniel, Martinez
testified, “[Daniel] was spending the night at [Mother’s] apartment. They
engaged in a domestic violence dispute. She refused to press charges. . . . And
they engaged in domestic violence given [that] her baby [Michael] was in the
home.” When Martinez learned of the incident through a police report and
confronted Mother about it, Mother told Martinez that the police officer had “made
up” a statement in the report that Mother had told the officer that Daniel was her
boyfriend. But Mother admitted that Daniel had spent the night, that he had
12
brought drugs into her apartment, that he had broken her window, that he had
threatened her, and that she was not pressing charges against him.
Laura conceded that after Daniel broke the window of Mother’s apartment,
Mother did not want to press charges against him even though Laura advised her
to do so. And Laura also testified that even after that incident, Mother allowed
Michael to visit Daniel (along with Daniel’s family) in Texas in May 2014, just four
months before the trial began. Mother testified that she had left Michael in
Daniel’s care but that she had ensured that Daniel would not be alone with
Michael.
As a result of having sex with Daniel in February 2014, Mother became
pregnant with her second child through him. But in April 2014, she miscarried.
The miscarriage caused Mother to miss a telephone visit with Kyle. When
Mother miscarried, she told Martinez only that she had an “abnormal tissue” in
her uterus and did not disclose that she had been pregnant or that she had
engaged in sex with Daniel. When Martinez asked Mother whether she had
been pregnant, Mother denied that she had been because she knew that “it was
wrong” and would reflect poorly on her. Mother’s second pregnancy by Daniel
concerned Martinez because it indicated that Mother was still in a relationship
with Daniel and was not protecting Michael.
Maisha Akbar replaced Martinez as Mother’s caseworker in May 2014.
Mother told Akbar then that she still believed that the babysitter had caused
Kyle’s injuries. She also told Akbar that she continued to love Daniel. Mother
13
told Akbar that she, Daniel, and Kyle had a “great relationship.” She showed
Akbar several pictures of Daniel and Kyle and asked Akbar whether Daniel
looked like someone who would hurt Kyle. Mother told Akbar that Daniel had a
right to be around Michael and that they “need[ed] to have a relationship together
because [Daniel is Michael’s] father.” Mother told Akbar that she did not intend
to keep Daniel away from Michael.
By May 2014, the Department’s primary goal for Kyle became the
termination of his parents’ rights and adoption by an unrelated family. A
document filed near that time expressed the Department’s concerns that Mother
did not believe Kyle’s statements about the abuse he had received from Daniel
and that she had placed her own needs and desires above Kyle’s needs.
Daniel pled guilty to abusing Kyle in early August 2014. He confessed that
he had committed “each and every act” alleged in the indictment, which included
hitting and biting Kyle. A court deferred its adjudication of Daniel’s guilt and
placed him on community supervision for four years. A condition of Daniel’s
community supervision required him to avoid contact with children under
seventeen years old. When Mother learned that Daniel had pled guilty, she still
questioned whether Daniel bit Kyle. Laura testified that she was surprised to
learn that Daniel had pled guilty because he had always denied abusing Kyle.
At the time of the trial, Mother was twenty-eight years old and was living in
a one-bedroom apartment in New Mexico for which she was paying $360 per
month. She had been living there with Michael, who was less than a year old, for
14
several months preceding the trial. Mother’s apartment had a crib for Michael
and a bed reserved for Kyle. Mother worked for General Dynamics and took
classes at a community college. Before that, she had worked for two car
dealerships. Daniel was living in Arlington after being transported to Texas
because of his charges for abusing Kyle.
Mother acknowledged at trial that from the time of Kyle’s removal, CPS
expressed concerns to her that she was not protecting Kyle but that she was
instead protecting Daniel by not believing that he had hurt Kyle. But Mother
testified that she had always believed that Daniel had done “something” to Kyle.
She testified that she was “[a]ngry, disgusted, and furious” when she learned that
Daniel had pled guilty to hitting and biting Kyle.
Mother asked the trial court to not terminate her parental rights, explaining,
“I have done everything asked of me to get my son back, and I have worked
really hard. And I’m willing [to] do anything to protect my son because I love my
son very much . . . .” Concerning her commitment to keep Kyle safe, Mother
testified,
I will do anything. I will work with New Mexico CPS. They could
drop into my house every single day for the rest of my life. I don’t
care. I just want my son back.
....
. . . I’ll take whatever class is necessary. I’ll -- I want to get
into counseling. I plan on getting into counseling because I know
myself. I need counseling with all I have been through.
15
Mother recognized that she had previously made mistakes in the “type of
men” she had chosen, but she explained that she had since changed her
surroundings and had “devoted [her] life to God.” She also explained that her
family, including Laura and Victor, could help her support Kyle. Mother testified
that Victor had a military background, was very strict, and would not welcome
Father or Daniel into his home. She explained that Laura and Victor are
respected in their community and that there would be “no better place” for Kyle
than to live with them.
At trial, the Department did not propose that Mother’s parenting of Kyle
was deficient in any way unrelated to her failure to ensure his physical and
emotional safety and stability. The evidence showed, for example, that Mother
kept an appropriate home, interacted with her children well, was attentive to
them, ensured that they were developmentally on target, did not have a
significant criminal record, and had not abused drugs or alcohol.
After the end of the bench trial, the trial court terminated Mother’s and
Father’s parental rights to Kyle. 11 The court found that clear and convincing
evidence showed that Mother had knowingly placed or allowed Kyle to remain in
conditions or surroundings that endangered his physical or emotional well-being,
that she had engaged in conduct or knowingly placed Kyle with persons who
engaged in conduct that endangered his physical or emotional well-being, and
11
At the time of the trial, Father was incarcerated. Father has not appealed
the termination of his parental relationship with Kyle.
16
that termination of her parental rights was in Kyle’s best interest. 12 The court
named the Department as Kyle’s permanent managing conservator. Mother
brought this appeal.
Kyle’s Best Interest
In her first issue, Mother contends that the evidence is legally and factually
insufficient to prove that termination of her parental rights is in Kyle’s best
interest. In a termination case, the State seeks not just to limit parental rights but
to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings in favor of the parent.
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55;
Holick, 685 S.W.2d at 20–21.
12
See Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec.
161.001(b)(1)(D)–(E), (2) (West) (to be codified as an amendment to Tex. Fam.
Code Ann. § 161.001). We cite to the current version of section 161.001, but we
note that the recent amendment to the statute does not affect our resolution of
Mother’s first issue.
17
Termination decisions must be supported by clear and convincing
evidence. Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec.
161.001(b); E.N.C., 384 S.W.3d at 802. Due process demands this heightened
standard because “[a] parental rights termination proceeding encumbers a value
‘far more precious than any property right.’” E.R., 385 S.W.3d at 555 (quoting
Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and
convincing if it “will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Tex. Fam.
Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802. For a trial court
to terminate a parent-child relationship, the Department must establish by clear
and convincing evidence that the parent’s actions satisfy one ground listed in
family code section 161.001(b)(1) and that termination is in the best interest of
the child. Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec.
161.001(b)(1), (2); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84
(Tex. 2005).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder
18
could have done so. Id. We disregard all evidence that a reasonable factfinder
could have disbelieved. Id. We consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not. See id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. Id. at
573–74. And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not unreasonable. Id.
at 573.
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that
termination of the parent-child relationship was in Kyle’s best interest. See In re
C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the
finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction in the truth of its finding, then the evidence is factually
19
insufficient. H.R.M., 209 S.W.3d at 108. The fact that there might be some
evidence favorable to the parent does not mean that the evidence is factually
insufficient to support the judgment. In re L.S.R., 60 S.W.3d 376, 381 (Tex.
App.—Fort Worth 2001), pets. denied, 92 S.W.3d 529 (Tex. 2002).
There is a strong presumption that keeping a child with a parent is in the
child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. In re R.R., 294 S.W.3d 213, 234 (Tex. App.—Fort
Worth 2009, no pet.). In determining the best interest of the child, we may
consider, among other factors, the desires of the child, the emotional and
physical needs of the child now and in the future, the emotional and physical
danger to the child now and in the future, the parental abilities of the individuals
seeking custody, the programs available to assist these individuals to promote
the best interest of the child, the plans for the child by these individuals or by the
agency seeking custody, the stability of the home or proposed placement, the
acts or omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one, and any excuse for the acts or omissions of the
parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); E.N.C., 384
S.W.3d at 807; see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (stating that in
reviewing a best interest finding, “we consider . . . the Holley factors” (footnote
omitted)).
20
Kyle’s past harm and future danger
Much of the testimony at trial concerned Kyle’s history of being physically
abused by men who had relationships with Mother, Mother’s inability to protect
Kyle from those men, the Department’s position that she had valued her
relationships with those men over Kyle’s safety, and her refusal, for the majority
of the time that the case remained pending in the trial court, to acknowledge that
Daniel had abused Kyle. The evidence showed that Mother had relationships
with two men—Father and Daniel—who had abused Kyle and that she continued
those relationships after the abuse occurred.
Father abused Mother at least twice before he broke Kyle’s arm, and after
he broke Kyle’s arm, he again assaulted her. Concerning the multiple chances
that she gave Father even after he had consistently abused her, Mother testified,
He went to jail for four months and then he got out. And, yes, I did
give him a chance to see if he was going to change. And then when
he went to prison we weren’t together anymore, and I had already
stopped giving him chances. And at that time, I was very young and
I was naive. And at that time, I thought that it was best for my son to
have both a mother and a father. And I . . . wasn’t thinking correctly,
and I was afraid to be a single parent. And so it took a lot for me to
realize, and I do regret every single time, and I regret it that [Kyle]
had to go through that.
Mother continued to have a relationship with Father for more than a year after
Kyle’s arm was broken during Mother and Father’s domestic dispute.
Kyle had bruises “all over [his] body” when he was admitted to the hospital
in June 2013 after spending a day with Daniel. The records from his hospital
stay state that he had “scattered circular bruises to all extremities” that were in
21
different stages of healing. According to those records, Mother noticed these
bruises after coming home on a day when Daniel had been exclusively caring for
Kyle, but she told personnel at the hospital that the bruises were caused by
Kyle’s babysitter.
Even though Mother testified that in June 2013, she had “believed there
was a big possibility” that Daniel abused Kyle, she stated that she had not
separated from Daniel at that time because she had felt “helpless” and could not
afford other housing. She explained that although she was still living with Daniel
after Kyle’s removal from her custody, she had “stayed in [Kyle’s] room, and [she
had] cried and cried.” Mother also testified that when she had left the hospital on
the night that Kyle was taken there because of his injuries, she had been
“confused” about who had caused them.
Long before the trial court terminated her parental rights to Kyle, Mother
knew that the Department was displeased with her attitude toward Daniel and her
continued relationship with him. But she testified that on the night Kyle went to
the hospital, she had confronted Daniel about what happened, and he had
denied abusing Kyle. She also explained that she had confronted him on other
occasions before he pled guilty and that he had continued to deny abusing Kyle.
When Mother spoke with a New Mexico CPS investigator in January 2014,
she said that she “wasn’t sure what to believe” about who had abused Kyle and
that Daniel was “always a very good person to . . . [Kyle].” Mother first learned
that Daniel had been arrested for abusing Kyle in March 2014. Mother testified
22
that she had questioned what she learned from the Department about Kyle’s
abuse because the Department had incorrectly included information on an
affidavit following Kyle’s removal. Concerning what she had learned directly from
talking to Kyle about the abuse he suffered, Mother testified,
My son has told me that his dad has spanked him, and where the
possibility comes into play, spanking is different from hitting in the
face. So I figured there’s a possibility that [Daniel] could have hit
him in the face, but from what [Kyle] was telling me, [Daniel]
spanked him and [a child] bit him, and he told me a lady smashed
his toe.
Mother recognized at trial that Daniel had abused Kyle. She testified,
I believed [Kyle] at the beginning. I believed [Kyle] when he would
tell me. It was hard for me to believe, but I believed [Kyle] from the
beginning . . . [but] it was confirmed when I found out that [Daniel]
pled guilty. It was just confirmed.
Mother admitted, however, that on numerous occasions, she had asked
the Department to investigate whether Kyle’s babysitter could have been
responsible for his injuries. At trial, she opined that both Daniel and the
babysitter had caused Kyle’s injuries, but she agreed that Kyle had not seen his
babysitter on the day that she discovered his extensive injuries and took him to
the hospital.
Upon first reviewing the case in July 2013, Martinez (Mother’s first
caseworker) was concerned about Mother’s pattern of placing Kyle in unsafe
environments, exposing him to abuse, and not believing his outcries. When
Martinez told Mother about Kyle’s consistent outcries that Daniel had abused
him, Mother responded that she “didn’t believe that [Daniel] could hurt her son.”
23
Martinez testified that Mother never conceded to her that Daniel had hurt Kyle.
When Martinez was asked to describe Kyle’s condition upon his removal from
Mother and his placement in foster care, she testified,
[Kyle] was very apologetic, always tripped and fell . . . . He would
wet his pants at times. He would be afraid of getting in trouble.
At times throughout the case, depending on the situation, he
would regress and go back to -- he improved in regards to wetting.
He would regress and poo or pee in his pants. He had a lot of
anxiety, a lot of [post-traumatic stress], which he would relate to the
abuse.
Martinez testified that to achieve reunification with Kyle, Mother needed to
believe his outcries and demonstrate that she could protect him by removing
herself from Daniel, who had hurt him. But Martinez testified that Mother “kept
not believing [Kyle’s] outcries no matter what [Martinez] would try to tell her.”
Martinez said that the Department’s plan for Kyle changed from his reunification
with Mother to the termination of her rights because the Department
had concerns in her engaging with [Daniel], not being protective,
[and] still not believing [Kyle’s] outcries. We also had concerns that
she had not demonstrated the skills that she was to learn while she
was doing her service plan.
She did complete [a domestic violence prevention class], but,
yet, here in [March 2014] we see her again in an altercation of
domestic violence. And, once again, she failed to be protective.
She . . . did not press charges.[13]
13
Martinez testified that Mother had told her that she did not “press
charges,” but Martinez acknowledged that Mother had called the police after
Father broke her window.
24
Ward (the CASA advocate) recommended the termination of Mother’s
parental rights. She explained that based on Mother’s history of continuing
relationships with both Father and Daniel after they had hurt Kyle, Mother had
not “demonstrated a willingness or an ability to protect [Kyle] from someone that
may want to harm him.” She stated,
[T]hrough my review of records and in speaking with other
professionals involved in this case, I have not seen any indication
that there’s been a change in behavior. I’m afraid that [Mother] has
continued to enter into relationships with someone that is abusive
and I’m concerned about [Kyle’s] safety if he’s returned to her.
Mother testified that she could prevent exposure of Kyle to further harm by
staying away from Daniel and other men. She explained, “I don’t allow myself to
be around negative people or around people that I . . . know . . . can become
violent. I kind of basically just surround myself with positive people now . . . .”
Mother agreed, however, that her decision to have sex with Daniel in February
2014 was inconsistent with her professed desire to stay away from him. And
Mother conceded that she was not protecting Michael when she allowed Daniel
to stay at her house and when she had sex with Daniel; she recognized that
being around Daniel creates volatility. Mother did not tell anyone in February
2014 about her claim that Daniel had pressured her to have sex with him.
Mother testified that she did not know why she brought Daniel to court with her in
July 2003 even after Kyle had named Daniel as his abuser.
Tricksey (a CPS supervisor) testified that because Mother and Daniel
shared a son together, “[i]t [would] be very difficult for [the Department] to be
25
convinced that [Kyle] wouldn’t be around [Daniel] anymore” if Kyle was returned
to Mother’s custody. Concerning Mother’s decision to drop Michael off for a visit
with Daniel in Texas during the summer of 2014, Tricksey testified, “[H]aving
someone who has been accused by her son as harming him, allowing a child that
can’t talk, can’t defend himself to be alone with [Daniel] is very concerning.”
Tricksey also testified, “If [Mother became] pregnant again by the same person
that hurt her son, then her intentions . . . show that . . . she can’t keep her
children away from abusers.” Tricksey noted that since Michael’s birth, Mother
and Daniel had an incident of domestic violence in New Mexico, when Daniel
threw a rock through Mother’s window. Tricksey acknowledged that when she
had talked to Mother on the telephone, Mother had said that she wanted whoever
abused Kyle to be punished. But Tricksey testified that Mother could have
shown a willingness to protect Kyle by “not being around the person . . . that hurt
him.”
Mother recognized that her most important duty as a parent is keeping her
children safe. But although she stated that she would not be willing to let Kyle
see the babysitter that had cared for him preceding Daniel’s abuse of him, she
could not explain why she had asked for Daniel to see Kyle after the abuse
occurred. Mother testified that she no longer loves Daniel, but Akbar testified
that Mother told her in May 2014 that she still loved him. When asked how she
had demonstrated a willingness to protect Kyle from people who had harmed
him, Mother testified,
26
I’m fighting for my son. I’m currently fighting for him because I feel
that it’s not just [Daniel] who’s harming my son. I feel he’s being
mentally abused by being away from me. And I believe that’s a part
of protecting my son and fighting for him, for his happiness and for
his safety, for his mental stability.
Akbar (Mother’s caseworker at the time of the trial) expressed her concern
about Mother’s “cycle of being in abusive relationships and not leaving the men
. . . [she is] in those relationships with.” Akbar recognized that the termination of
Mother’s parental rights would require the end of Kyle’s relationship with his
brother Michael, but she testified that termination was nonetheless in Kyle’s best
interest because “the [most] important thing . . . is [Kyle’s] safety. So if . . . it's not
in [Kyle’s] best interest to be with his mother because he won’t be safe, then we
have to follow through with that.”
Akbar testified that Mother had never talked to her about Daniel’s guilty
plea for abusing Kyle. Regarding Mother’s failure to tell her about the plea,
Akbar testified,
[Mother] . . . believe[d] it was the babysitter. [She] continued that
throughout . . . my four months being on the case.
So I think that [Mother would] call me and let me know at
least, Hey, did you hear about [Daniel] being convicted. Oh, my
God, I can’t believe that he got convicted.
Akbar also testified that although Mother had known in March 2014 that
Daniel was arrested for abusing Kyle, she had still expressed her belief that
Daniel should be able to visit Michael. Akbar testified that Mother “was in a cycle
of being with men that abused her children.”
27
Laura (Mother’s aunt) acknowledged that Mother had not used good
judgment during her relationships with Father and Daniel. She admitted that
when Mother had continued her relationship with Father after he had hurt Kyle,
Mother was not protecting Kyle. She also testified that even after Daniel had
been criminally charged with abusing Kyle, Mother had remained unsure about
whether Daniel injured him. Laura testified that one or two months before the
trial, Mother took Michael to Daniel for a visit and left. Laura told Mother that
dropping Michael off with Daniel was not a good idea, but Mother did not heed
her advice. Laura opined that “no child should be present when people are
fighting.” She expressed that she did not “agree with what [Mother] did” by
continuing an intimate relationship with Daniel after he was suspected of abusing
Kyle.
Victor testified that he had advised Mother to end her relationship with
Father when Mother had spoken about how Father abused her. He conceded,
however, that for some time thereafter, Mother had maintained her relationship
with Father. Victor agreed that it is important for a parent to protect a child, and
he acknowledged that Mother had “made mistakes” in doing so.
Angela Tellez, a New Mexico permanency worker, received a request in
April 2014 to investigate Mother’s home and evaluate her abilities to parent.
Tellez’s search of Mother’s background revealed the incident that had occurred
the month before when Mother forced Daniel to leave her apartment and he
threw a rock through her window. Tellez spoke with Mother in April 2014 and
28
confirmed that no one was living in Mother’s apartment at that time other than her
and Michael.
Tellez recommended Kyle’s placement with Mother because Mother could
“articulate a safety plan to protect [him] from [Daniel] and also from any other
person” and because Mother had a “great deal of family support in New Mexico
. . . who would be willing to help be a safety monitor if need be.” According to
Tellez, in April 2014, Mother “was sure” that Daniel had not hurt Kyle and that the
babysitter had abused him. Mother minimized Kyle’s injuries when describing
them to Tellez. Nonetheless, Tellez stated that Mother had agreed to keep
Daniel away from Kyle. Tellez testified that Mother had moved to New Mexico to
protect Kyle, opined that Mother had put Kyle’s interests over her relationship
with Daniel, and recommended to the court that Kyle be returned to Mother’s
custody.
On cross-examination, Tellez testified that Mother had not told her in April
2014 that she had recently had sex with Daniel and had been pregnant with
Daniel’s child, that Daniel had made recent threats against her, or that Daniel
had been arrested and transported to Texas concerning charges for abusing
Kyle. Tellez admitted that if Mother had told her that she had sex with Daniel
after he pressured her to do so in February 2014, Tellez would have
“question[ed] [Mother’s] ability to protect” Kyle and would have changed her
recommendation. She also explained that Mother had represented that she had
visited Kyle at least once per month although Mother had not visited him in
29
December 2013 or January 2014. Mother told Tellez in April 2014 that Daniel
was a “very good person” even though in the prior two months, Daniel had
pressured Mother to have sex with him, had thrown a rock through her window,
and had been arrested and transported to Texas for charges of abusing Kyle.
Mother’s relationship with Kyle, her plans for him, and her parental abilities
The evidence showed that Mother has a warm, nurturing relationship with
Kyle. She visited with Kyle on nearly twenty occasions from the time of his
removal until the trial, although she did not see him in December 2013 or
January 2014. By all accounts, these visits went well. During the visits, Kyle
was joyful and excited; he hugged and kissed Mother, and they sang and drew
pictures together.
Kyle met Michael through visitation; Laura testified that they had bonded
and that Kyle knew that Michael was his brother. Laura stated that Mother had
missed Kyle and had repeatedly cried for him.
Near the time of the trial, Mother was working full days for General
Dynamics while Laura took care of Michael. Laura testified that she would be
willing to also watch Kyle so that Mother could continue working. Mother also
has other family members living in New Mexico who could help her support Kyle.
According to Laura, Mother does not drink or take illegal drugs, does not
have a criminal record, and is “very hard working.” 14 Laura expressed that
14
Mother testified that she does not drink alcohol consistently or use drugs.
30
Michael was flourishing while in Mother’s custody. She opined that Mother is a
very good parent and testified that Mother has never left Kyle with anyone alone
without planning to return for him.
Victor explained that he and Laura had provided for Mother “[f]inancially,
morally, and with God’s spirit.” He described Mother as a wonderful parent who
“loves her kids [and] loves God.”
Ward recognized that Mother and Kyle interacted well with each other
during visits, including singing together and making up stories. She
acknowledged that Kyle is very bonded to Mother. She recognized that the
termination of Mother’s rights would not likely be easy for Kyle and that it could
possibly cause him emotional trauma.
When asked to describe her relationship with Kyle, Mother said,
We love each other very much. We hug each other every chance
we get. I smother him with kisses. We’re just -- I always make sure
he knows that I love him. I tell him I love him very often, and he tells
me the same. And we . . . don’t like to be apart from each other.
Mother testified that she and Kyle had shared many activities together, including
drawing, painting, dancing, singing, and hiking. Mother had arranged for both
Kyle and Michael to be seen by therapists as they aged to make sure that they
were reaching developmental milestones.
E.S. (Emily), who was eighteen years old at the time of trial, is Mother’s
sister. Emily testified that Mother “always put[] [Kyle] first” and that Kyle was
always happy and engaged in various activities when he was with Mother. She
31
also explained that Mother actively parented Michael, that he was always “right
beside her,” and that she was protective of him. Emily visited Kyle after his
removal from Mother’s care, and he was happy to see her; Emily explained that
she could not imagine the effect that the termination of Mother’s rights would
have on Mother’s extended family.
Emily acknowledged, however, that Mother had never extensively
discussed Kyle’s injuries with her and that when Mother had talked about the
injuries, she had stated that she “didn’t know who did it.” Emily also conceded
that she did not “really know anything about [Daniel],” but she testified that she
did not believe that he had abused Kyle.
D.R. (Donna), one of Mother’s aunts, testified that Mother had told her that
Kyle’s babysitter abused him. But Donna testified that Mother is a good parent
and that she had the support of several family members in New Mexico.
Mother’s completion of her service plan
After Kyle’s removal from Mother’s care in the summer of 2013, she called
CPS repeatedly because she wanted to start her service plan and be reunited
with him. She got the service plan more than a month after Kyle’s removal. She
completed all tasks assigned to her in the service plan, including participating in
therapy, taking an anger management class, managing her income, and taking
parenting classes.
Mother understood from talking to Martinez that when she completed her
service plan, Kyle would be returned to her custody. Thus, Mother expressed
32
her belief that Kyle should have been returned to her in February 2014, as soon
as she completed the services. She recognized that she had sex with Daniel and
allowed him to sleep at her house (leading to the March 2014 domestic
disturbance) after that time, but she explained that “things would have been
different” if Kyle had been in her care.
Concerning the fact that Mother had completed all of the tasks within her
service plan, Akbar testified, “[S]he can finish her classes, but if she’s not able to
demonstrate and show that she has learned from them, then it’s technically not
successful.” Tricksey testified that Mother did not complete a “goal” of the
service plan because she did not demonstrate a willingness and ability to protect
Kyle from further abuse.
Victor and Laura’s desire to obtain Kyle’s custody15
Laura remained involved in Kyle’s case from the time of his removal until
the trial with the goal of either achieving his placement in her home or his return
to Mother’s custody. Mother and Laura often came together from New Mexico to
Texas to visit Kyle while he was in foster care. Each visit lasted three hours.
Like Mother, Laura was reluctant to accept that Daniel was Kyle’s abuser;
Laura testified that her opinion about whether Daniel had caused Kyle’s injuries
15
We hold below that Mother does not have standing to contest the part of
the trial court’s judgment that grants permanent managing conservatorship to the
Department. However, we include the facts in this section because we conclude
that they are relevant to our application of the Holley factors discussed above.
See 544 S.W.2d at 371–72.
33
had “evolved” over the course of the Department’s case. At trial, Laura
recognized that Kyle “could have” been hurt by Daniel along with a child that Kyle
had been with.
Victor, a retired naval officer, resides with Laura in New Mexico. Kyle has
a room in the house there. Kyle lived there for more than two months when
Mother lived in San Antonio. Victor testified that he had asked the Department to
place Kyle in the home and that he and Laura had obtained a foster parent
license to achieve that goal. Victor and Laura received training on child safety to
obtain the license.
Victor conceded at trial that Daniel had caused Kyle’s injuries. He testified
that while he did not initially know whether Daniel or Kyle’s babysitter had abused
Kyle, he later became convinced that Daniel was the abuser. He explained that
when he had written the June 2013 letter vouching for Daniel’s character, he had
believed that the babysitter had abused Kyle (in part, because Mother had “just
started using that babysitter”), but he had later believed that Daniel had done so
when Daniel confessed.
Victor testified that at a meeting about Kyle’s custody soon after his
removal from Mother’s care, he said, “Do a thorough investigation, investigate
both [Daniel and the babysitter]. Whoever is guilty, put [that person] in jail.”
Victor testified that from the beginning, he wanted the Department to require
Daniel and the babysitter to submit to polygraphs about whether they had abused
34
Kyle. According to Victor, when he heard that Daniel was being charged with
abusing Kyle, he said, “Good. I hope they put him in jail.”
When asked why he and Laura wanted to raise Kyle, Victor testified,
I am an example of many, many kids that follow me, and they’re very
successful. I believe if I have [Kyle], . . . I can teach him to be a very
good man, to love God, and to be a very productive young man
when he grows up. I will ensure . . . that he’ll go to . . . Christian
schools . . . to understand what God is; go to college, make him a
beautiful musician. That’s what my kids are.
And number two is, I want him to be a good engineer,
because I found out that music and engineering are so much
related. And, most of all, I just want him to be with me and my wife
so we can show all that to him. We’ll protect him.
Victor expressed that he did not know why the Department was opposed to
allowing him and Laura to obtain Kyle’s custody. He recognized that Kyle needs
continued therapy related to the emotional trauma he had suffered from; Victor
testified that he would arrange for the therapy to continue in New Mexico.
Victor has the top possible security clearance within the federal
government, and the government investigates his background every five years
before renewing the clearance. He and Laura sponsor ROTC groups at three
New Mexico high schools and donate money to provide scholarships for students
in those groups. Victor testified, “I mentor the young kids as [freshmen] to tell
them to go to college, not to drink[,] and believe in God.” Victor explained, “I
work, I pay my bills, I do all those things. [Laura], my wife, takes care of me,
takes care of the house[,] and takes care of [Kyle]. So between the two of us, I
believe we can provide a very nice home for [Kyle].”
35
Ward visited Kyle in his foster home seventeen times and discussed Kyle
with Laura and Victor through several phone calls and in person. Ward opined
that Laura and Victor may not be able to provide a safe home for Kyle because
Laura did not believe his outcries, defended Daniel, and blamed Kyle’s babysitter
for his injuries. Ward testified, “[Laura] was more focused on the babysitter than
she ever was on [Daniel].”
The Department declined to place Kyle with Laura and Victor, and
although Tricksey recognized that CPS’s general goal is to place a child with
family members if the child cannot be reunited with a parent, she testified that no
party had asked the trial court for a hearing to challenge the Department’s
decision to not place Kyle with Laura and Victor.
Kyle’s development with his foster family and his continuing need for
therapy
Kyle suffered emotional trauma after Daniel physically abused him, but
when the trial court terminated Mother’s parental rights, Kyle was thriving with his
foster family and was benefiting from the treatment that he was receiving there.
Theresa Davis, a licensed social worker, began providing therapy to Kyle in
September 2013 (when he was four years old) and had been doing so on a
weekly basis for approximately a year at the time of the trial. When Davis first
met Kyle, she assessed his social, mental, and physical capacity, and she
diagnosed him as having post-traumatic stress syndrome with anxiety. In
September 2013, Davis noticed that Kyle’s self-esteem was very low and that he
36
had difficulty trusting her. By the trial a year later, after building rapport with
Davis by playing with her in his room, Kyle trusted her. He eventually began to
speak about his feelings and about Daniel’s abusing him.
Several months before trial, Kyle told Davis that in the past, Daniel, who
was living with Kyle, had gotten angry with him and had punched him with a
closed fist. Kyle told her that he was scared of Daniel; she believed from his
statements that the abuse occurred multiple times. According to Davis, Kyle’s
post-traumatic stress syndrome manifested in “avoidance behavior,” flashbacks,
withdrawal, bedwetting, poor communication skills, and “always wanting to be
reassured that . . . he’s safe.” Davis recognized, however, that some of these
behaviors could have resulted from Kyle’s anxiety about being separated from
Mother. Davis acknowledged that she did not know whether Kyle had suffered
from anxiety before his removal from Mother’s custody.
During Davis’s counseling of Kyle, she asked his foster family to reassure
him, give him safety and consistency, and get him involved in social activities.
The foster family provided a safe environment, and Kyle improved while staying
there. For example, Davis testified, “[Kyle’s] able to trust now. . . . [H]is self-
esteem is better. He doesn’t fall as much . . . . He talks more. He laughs more.
He shows expression more . . . . So, yes, he has progressed and he’s continuing
to progress.” Even so, Davis stated that Kyle required therapy for at least
another year and that to overcome the post-traumatic stress syndrome, Kyle
needed to remain in a consistent, trusting, loving, and safe environment.
37
Davis recognized that Kyle missed Mother and had said so in every
therapy session, including a session that occurred the day before trial. She
explained that while Kyle cried about missing Mother toward the beginning of his
therapy, he had learned to cope with his emotions more toward the time of trial.
Davis also recognized that Kyle was excited about having a little brother. Even
considering Kyle’s emotions for Mother, Davis opined that he should stay in his
foster home because it provided the consistency and safety that he needed to be
successful. Davis never talked to Mother, Laura, or Victor. She recognized that
Kyle’s family loves him.
According to Akbar, after Kyle’s visits with Mother ended, he was usually
happy to go back to his foster home and play; she only saw Kyle cry once when
a visit with Mother ended. Akbar testified that Kyle was thriving in his foster
home and that his foster family would consider adopting him. Martinez testified
that Kyle was happy in his foster home and that he had a good relationship with
other children in the home.
Ward agreed that Kyle had thrived in his foster home. She explained that
he seemed to be “calm and comfortable” and that he felt safe and secure there.
She asked the trial court to allow Kyle to remain in his foster home until a
permanent home could be found for him.
The trial court’s determination
After a careful review of all of the evidence admitted at trial, including the
facts summarized above, we must conclude that the evidence is legally and
38
factually sufficient to prove that termination of Mother’s parental rights is in Kyle’s
best interest. See J.P.B., 180 S.W.3d at 573; C.H., 89 S.W.3d at 28. Despite
Mother’s statements that she would ensure Kyle’s safety in the future, from
Mother’s repeated actions in the past, the trial court could have reasonably
discounted her ability to permanently keep Kyle safe from further physical and
emotional harm caused by either Daniel or another man. 16 See In re A.M., 385
S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied) (explaining that a factfinder
is free to “reject [a parent’s] assertions of future stability and of having learned
from her mistakes”); see also R.R., 294 S.W.3d at 234 (stating that the prompt
and permanent placement of the child in a safe environment is presumed to be in
the child’s best interest).
The evidence shows that Mother exposed Kyle to physical abuse through
relationships with two men; that she continued to live with each of those men,
maintain intimacy with them, and expose her children to them after the abuse
occurred and despite being advised to do otherwise; that she was reluctant to
accept Daniel’s responsibility for abusing Kyle despite Kyle’s repeated outcries
and the fact that Daniel had exclusively cared for him on the day that he went to
the hospital; that she minimized Kyle’s injuries although they were extensive; that
16
Mother argues on appeal that she now “realizes that she must be much
more careful about men.”
39
she may have instructed Kyle to cover up the abuse; 17 that she made poor
choices in her relationship with Daniel even after Kyle’s removal, when she knew
that her relationship with Kyle was in jeopardy and when she had custody of
Michael; that she declined to report those choices to the Department; and that as
of May 2014, after Daniel’s arrest for abusing Kyle, Mother still professed that
she loved Daniel. Cf. R.R., 294 S.W.3d at 234 (explaining that in determining
whether a parent is willing to provide a child with a safe environment, a court
should consider the magnitude and frequency of harm to the child and whether
there “is a history of abusive or assaultive conduct by the child’s family or others
who have access to the child’s home”); see also C.B. v. Tex. Dep’t of Family &
Protective Serv., 440 S.W.3d 756, 770 (Tex. App.—El Paso 2013, no pet.)
(considering a mother’s repeated relationships with violent men, which continued
after the violence occurred and resulted in abuse against one of her children, as
evidence that the mother had failed to “put the safety and welfare of her children
first” and that termination of the mother’s rights was in the children’s best
interest); In re J.L.W., No. 02-08-00179-CV, 2008 WL 4937970, at *9 (Tex.
App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.) (holding that termination of
17
According to Anderson, Kyle told her that Daniel had hit him and that
Mother had instructed Kyle to say that he fell if anyone asked him what had
happened. Mother denied that she had told Kyle to say that he fell. “[T]he fact
finder, as opposed to the reviewing [court], enjoys the right to resolve credibility
issues and conflicts within the evidence. It may freely choose to believe all, part,
or none of the testimony espoused by any particular witness.” In re T.N., 180
S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.).
40
a mother’s parental rights was in a child’s best interest when the mother had an
“individual history of abusive relationships” and had failed to “protect her other
children from the men with whom she had had abusive relationships”). The
evidence also establishes that Kyle was suffering from emotional trauma (along
with his physical injuries) upon his removal from Mother’s custody but that he
was recovering and developing well and was happy and secure while residing in
the foster home after his removal. Cf. R.R., 294 S.W.3d at 234 (stating that a
court should consider the results of psychological evaluations of the child); In re
Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)
(concluding that stability and permanence are important to the growth of a child
and affirming a finding that termination was in a child’s best interest when the
child was thriving in foster care); In re U.P., 105 S.W.3d 222, 230–31 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g) (considering a
child’s bond with a foster family as a factor supporting the child’s best interest in
the termination of a father’s parental rights).
Although the evidence shows that Mother completed her service plan, it
also demonstrates that after she did so, she continued to make decisions in her
relationship with Daniel that she later conceded were not in Michael’s best
interest. Cf. In re A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no
pet.) (holding that although a parent’s performance of a service plan is likely to
fulfill some of the Holley factors, service plan compliance alone will not prevent
termination of a parent’s rights); In re M.G.D., 108 S.W.3d 508, 513–15 (Tex.
41
App.—Houston [14th Dist.] 2003, pet. denied) (holding that termination of the
mother’s parental rights was in the children’s best interest despite the fact that
she completed her service plan). And although Mother argues that child-
protective authorities and family in New Mexico could monitor Kyle’s return to her
care to ensure his safety, the trial court could have reasonably found that the
danger to Kyle would not abate because Mother had continued to expose
Michael to Daniel, whom Kyle had named as his abuser, while disregarding
recommendations from family members and while the Department was closely
scrutinizing her actions. 18
The record contains evidence that a factfinder could have weighed against
termination, including Mother’s diligence in visiting Kyle and the bond that they
shared during those visits; the facts showing that Mother and Kyle missed each
other and that Kyle had bonded with Michael; evidence of Mother’s positive
parenting skills that were unrelated to keeping Kyle safe; and the availability of
familial support to Mother in New Mexico, including Laura and Victor, if the court
did not terminate her parental rights. But we conclude that even considering
these facts, the trial court could have reached a firm conviction or belief that
termination of Mother’s parental rights was in Kyle’s best interest based on the
18
Also, as explained above, Mother’s family, like Mother, was slow to
accept Daniel’s sole responsibility as Kyle’s abuser despite Kyle’s outcries that
named him and the Department’s prompt determination that Kyle’s babysitter
was not responsible for his injuries.
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other facts described above. See J.P.B., 180 S.W.3d at 573; C.H., 89 S.W.3d at
28.
In terminating Mother’s parental rights, the trial court followed the
recommendations of his counselor, Davis (at least to the extent that she believed
Kyle should “stay in his foster home”); his CASA advocate, Ward; 19 his attorney
ad litem; and Mother’s caseworkers, Martinez and Akbar. Davis and Ward had
extensive personal interactions with Kyle before giving their recommendations,
and Martinez and Akbar had similar interactions with Mother. After carefully
considering all of the evidence presented in the trial court in light of the Holley
factors, we cannot second-guess the trial court’s decision to accept these shared
recommendations and to find that termination of Mother’s parental rights to Kyle
is in his best interest. See 544 S.W.2d at 371–72. We acknowledge that the
termination of Mother’s parental rights to Kyle is tragic; we cannot conclude it is
erroneous. We overrule Mother’s first issue.
Conservatorship Determination
In her second issue, Mother argues that the trial court abused its discretion
by naming the Department as Kyle’s permanent managing conservator,
continuing his placement in foster care, and not naming Laura and Victor as his
possessory conservators. Laura and Victor were not parties to the litigation in
19
Ward testified that she did not take her recommendation of termination
lightly and that recommending termination of parental rights is “very difficult.”
43
the trial court, nor are they parties in this appeal; we have not been directed to
any place in the record that establishes their attempt to formally intervene. 20
Because we are affirming the trial court’s order terminating Mother’s
parental rights to Kyle, she has become a former parent with no legal relationship
to him. See Tex. Fam. Code Ann. § 161.206(b); In re Y.V., No. 02-12-00514-CV,
2013 WL 2631431, at *1 (Tex. App.—Fort Worth June 13, 2013, no pet.) (mem.
op.). As such, Mother lacks standing to attack the portion of the termination
order appointing the Department as Kyle’s managing conservator. 21 See Y.V.,
2013 WL 2631431, at *2; see also In re H.M.M., 230 S.W.3d 204, 204–05 (Tex.
App.—Houston [14th Dist.] 2006, no pet.); In re Lambert, 993 S.W.2d 123, 132
(Tex. App.—San Antonio 1999, orig. proceeding) (“Former parents do not have
standing to invoke the trial court’s continuing jurisdiction over managing
conservatorship issues.”); Ryder v. State, 917 S.W.2d 503, 505 (Tex. App.—
Waco 1996, no writ) (mem. op.). Accordingly, we overrule Mother’s second
issue.
20
We note that the trial court’s termination order does not expressly prohibit
his future placement with Victor and Laura; it authorizes the Department, as
Kyle’s permanent managing conservator, to place him for adoption in a suitable
home.
21
Standing is a non-waivable component of subject matter jurisdiction that
we may raise on our own motion. See Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445–46 (Tex. 1993).
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Conclusion
Having overruled both of Mother’s issues, we affirm the trial court’s
judgment terminating her parental rights to Kyle.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: May 28, 2015
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