A. R. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00139-CV
A.R., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 453RD DISTRICT COURT OF HAYS COUNTY
NO. 20-1207, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING
MEMORANDUM OPINION
A.R. (Mother) appeals from the trial court’s decree terminating her parental rights
to her four sons—Matt, Marcus, Lucas, and Dave—who were 7, 6, 5, and 4 at the start of trial. 1
Mother challenges the legal and factual sufficiency of the evidence supporting the predicate
statutory grounds for termination. See Tex. Fam. Code § 161.001(b)(1)(D) (endangering
environment), (E) (endangering conduct). She also challenges the legal and factual sufficiency
of the evidence supporting the best interest finding and the conservatorship appointment. We
affirm the trial court’s termination decree.
BACKGROUND
In late 2019, the Department of Family and Protective Services (the Department)
received an intake that a domestic violence incident had occurred when Father (whose parental
1
For their privacy, we will refer to the children by aliases and to their family members
by their relationships to them or by aliases. See Tex. R. App. P. 9.8.
rights were already terminated in a previous proceeding) entered into Mother’s home in violation
of a protective order. The Department initiated a family-based safety services (FBSS) case,
which was ongoing until the Department received another intake in June 2020, in which it was
alleged that the four children were left unattended and “running around by themselves” at an
apartment complex. Mother told the FBSS caseworker that her “boyfriend” was supervising the
children, but Matt (the oldest child) stated that the “boyfriend” was actually Father and that
Mother had instructed the children not to tell the FBSS caseworker and use a different name for
Father. The Department thereafter filed its original petition on June 17, 2020, seeking
termination of Mother’s parental rights to her four children. Mother initially had supervised
visits with the children at their placement with paternal grandmother. The Department later
requested a placement change in October 2020 due to allegations that Mother was continuing to
contact Father, and the children were ultimately placed into two separate foster homes.
A non-consecutive five-day bench trial began on February 28, 2022, before an
associate judge. 2 Officer Jeremy Sembera testified first about the October 2020 incident. He
testified that the paternal grandmother reported the trespass at the apartment, and when Sembera
arrived, she identified Father as the individual who came to the apartment. Sembera testified that
all four children were present, and he observed some were crying. He testified that the back door
“looked like someone had attempted to break the door in” and that Father had fled the scene in
Mother’s vehicle. Mother refused to press charges for the vehicle theft because she stated that
Father’s violation of the active protective order “would be enough”; Sembera stated that Mother
“just really wasn’t cooperative.”
2
The trial court previously extended the dismissal deadline to April 1, 2022, pursuant to
the then-applicable Supreme Court COVID-19 emergency orders.
2
Mariah Sharp, the FBSS caseworker, testified that Father’s parental rights were
terminated in a previous proceeding, that a protective order was put in place for Mother and the
children, and that the children were placed with Mother. She explained that the FBSS case
intake arose from a domestic violence incident where Father had entered Mother’s home without
invitation. However, she expressed concern that Mother was also allowing Father access to the
children during the active protective order. She described the June 2020 intake received by the
Department, where the children were found “running around by themselves” outside an
apartment complex. She testified that Mother told her that Mother’s “boyfriend” was
supervising the children, but Matt (the oldest child) told Sharp that the “boyfriend” was actually
Father and Mother had instructed the children to not tell Sharp. Sharp testified that the removal
was necessary because Mother “continued to lie about her boyfriend,” placed the children in
danger by leaving them with Father, and had tested positive for cocaine. Sharp also expressed
concern that Mother continued “to stay in this pattern” of completing recommended services and
going back “to doing what she is not supposed to be doing,” noting that there were
approximately four previous intakes regarding domestic violence between Mother and Father
over the last three to four years. She also was concerned that Mother coached the children not to
talk to or mislead Sharp and that the children did not have structure and were “[n]ot very clean.”
Sharp did confirm that Mother appeared worried about Father being released from jail. Sharp
also confirmed that she had no further contact with Mother after July 2020.
Annie Atwood then testified as the individual therapist for the two older children
(Matt and Marcus). She also described previous individual therapy with the two younger
children (Lucas and Dave). She summarized that the children were previously removed “due to
reported drug usage, neglectful supervision, and the family was reportedly homeless in July of
3
2017.” She stated that the children were in foster care for a year and a half before being
returned. Atwood testified that Matt, who was six when therapy started, was physically
aggressive, defiant, had instances of self-harm, and showed “significant deficits in his ability to
trust adults.” She described Matt’s behaviors as “atypical” for a child of his age, and she
testified that he showed behaviors indicating he had observed domestic violence, including
punching walls, banging his head, and hitting his foster mother with his fist. She testified that
Matt became less physically aggressive and stopped self-harm as therapy sessions progressed,
but he displayed negative behaviors when family therapy sessions started with Mother and the
other children. When asked whether Matt made any outcries of abuse or neglect, Atwood
testified that none were made “directly” and that he did not display any signs of exposure to
sexual violence or sexual abuse during play therapy. She expressed concern that, if Matt was
reunited with Mother, his behaviors would escalate and he would revert back to a caretaker role
of his brothers, “which in the past has been very overwhelming for him.” She recommended
termination of Mother’s parental rights because of “the patten of abuse and neglect” and Matt’s
need for “caregivers that he can trust.”
Atwood also testified that Marcus, who was five when therapy started,
demonstrated that he did not feel safe, and he showed aggression and themes that he and his
brother “were in constant need of being rescued from danger” and that “he saw the world as a
dangerous and threatening place.” When asked whether Marcus made outcries of abuse or
neglect in his play therapy, Atwood answered in the affirmative. She described signs of physical
aggression and “very concerning sexualized play with very explicit themes and acting out of
explicit sexual acts that were well beyond what a five-year-old child should know about.” She
also testified that Marcus had exposed himself to one child and groped another at summer camp
4
and that he had also removed clothing from dolls during play therapy and simulated sexual
intercourse with “very explicit sound effects.” She testified that Marcus showed marked
improvement in his behaviors and had “largely stabilized” by the late fall but that he had
negative behavioral changes once family therapy sessions began with Mother and his brothers.
Those negative changes included greater defiance and physical aggression towards his foster
mother and at school, as well as increased “sexualized behaviors towards his foster mother.” She
recommended termination of Mother’s parental rights, expressing concern about Mother’s ability
to be “protective” of Marcus given his traumatic history and his exposure “to sexual situations
and possible sexual abuse.”
Atwood also provided ten months of individual therapy for Lucas, who did not
“show many overt behaviors with the exception of minor defiance.” She testified that Lucas
showed improvements in therapy, but his sexualized behaviors increased after visits with Mother
started in October 2021; Atwood pointed to instances of Lucas groping another child at daycare
and thrusting his pelvis in another child’s face. She expressed concern about Mother’s ability to
protect Lucas, the abuse and neglect that occurred while in her care, and she recommended
termination of Mother’s parental rights. Atwood also provided therapy to Dave for four months,
but she stated that he did not demonstrate many atypical behaviors for a two-year-old. She
described positive behaviors in Dave as therapy progressed, but also noted an uptick in tantrums,
“fear-based anxiety-related behaviors,” and “verbalizations of feeling scared” when
visiting Mother.
Atwood expressed concern about observing negative behaviors in all four children
after visits with Mother restarted in October 2021. She testified that termination was in the best
interest of the children because they had already experienced “significant disruptions” and was
5
concerned that sending the boys back risks “further abuse and neglect.” Atwood conceded that
she had not witnessed Mother’s interactions with the children, that she did not definitively know
the source of the children’s behavior, and that she had not undertaken any investigation into the
source of the children’s behavior. Atwood also conceded that it was possible the behaviors could
stem from a source other than Mother, but she later clarified that three of the four children have
exhibited sexualized behaviors after placement, that those children are not in the same foster
placement, and that the commonality between the children are the visits with Mother. She also
testified that Matt stated that he would like to both be reunited with Mother and stay with his
foster mother, and she stated that none of the other children expressed any preference to her.
Shaye Hicks, the individual play therapist for Lucas and Dave, testified that she
had weekly sessions with Lucas and that he displayed behaviors indicating he had observed
sexual behavior. She also testified that she observed Lucas having sexualized behaviors as well
as increased aggression after he began having visits with Mother. Hicks testified that she saw
Dave weekly and that he did not show many negative behaviors but showed lots of “aggression,”
such as throwing and breaking toys during the time period when he had visits with Mother. She
recommended that Lucas and Dave not be reunited with Mother. On cross-examination, Hicks
testified that she had not spoken with Mother, that it was “possible” the children could have
suffered sexualization someplace other than the care of Mother, and that children also suffer
trauma from being removed from their families, which can be expressed in aggressive behaviors.
Nicole Floyd, the behavioral interventionist at Lucas and Dave’s school, testified
that Lucas had been removed from his classroom because of aggressive behavior and that his
behavior had escalated in October, which corresponded with the reintroduction of Mother into
the children’s lives. When discussing sexualized behaviors by the children, Floyd noted there
6
was one instance where Lucas “crossed a boundary with his teacher.” She testified that Dave
had more behavioral interventions than Lucas, that those were partly because of differences in
their teachers’ skills and partially because Dave has “more physical behavior,” and that Dave’s
behavioral interventions also started occurring in October. She expressed no concerns about how
the two children were treated in their foster home and had heard no outcries about abuse or
neglect in the foster home.
Lucas’s classroom teacher provided further testimony about Lucas’s behavior at
school, noting that Lucas began the year acting as a “normal child” but that his behavior abruptly
changed in October 2021. She testified that Lucas “became more sexualized in nature for a child
his age,” referenced “naked parts,” tried to touch the teacher’s breasts, and thrust his pelvis at
another student. She testified that this behavior continued from October until the beginning of
February 2022. She confirmed she had not spoken with Mother about the behaviors because she
is only allowed to speak to the current legal guardian of her students. She also testified that
Lucas had indicated he wanted to live with his foster mother forever.
Foster Mother Claire testified about fostering Matt and Marcus, who were placed
in her home in November 2020. She testified that when Matt arrived, he was six years old, could
not put his shoes on the correct foot, could not brush his teeth properly, and had feces in his
underwear on a regular basis. Marcus was five years old, was nonverbal other than simple words
or phrases, could not dress himself, was only partially potty trained, and did not know how to
brush his teeth. Foster Mother Claire testified that Matt made outcries of sexual abuse by
Mother. She relayed an example when Matt told her that he would bathe with Mother, and
another when Matt asked Foster Mother whether “licking a penis” and “licking a girl’s butt”
were inappropriate because he said Mother used to watch movies where that occurred. Matt
7
made another outcry in January 2022, stating that Mother regularly touched his private parts,
indicating his penis and scrotum, while in the tub and that it “happened a lot.” Foster Mother
Claire also described sexualized behaviors by Marcus that became more frequent “immediately
after” visits began with Mother. Those behaviors included trying to kiss her on the mouth and
touching her breasts, and she stated that Marcus in one instance tried to choke her when she told
him he was not allowed to touch her breasts.
Foster Mother Claire stated that both boys had positive behavioral changes since
placement and were bonded with her grandchildren. She expressed a desire to adopt the boys,
and she coordinated with the other foster placement so all four siblings could spend time
together. She asserted that termination was in the older boys’ best interest. On cross-
examination, Foster Mother Claire testified that she saw some interactions between Mother and
the children and described Mother as “lack[ing] of affection for her children.” She conceded that
the Department had “ruled out” an earlier allegation of sexual abuse, but she indicated that
additional allegations were still being investigated. She testified that she does not discuss topics
of sexual abuse with the children.
Foster Mother Gloria then testified as the foster mother for Lucas and Dave, who
were almost four and almost three, respectively, at the time of their initial placement. She
testified that Dave transitioned “fairly smoothly” but that Lucas struggled and lacked self-
regulating behaviors to calm himself. Lucas was delayed in his expressive and receptive
language and had no understanding of potty training, while Dave had a slight speech delay and
low “gross motor skills.” Foster Mother Gloria testified that Lucas had not made any direct
outcries, but that he showed concerning sexualized behaviors; she noted that Lucas no longer
presented sexualized behaviors or used sexualized language after his visits with Mother ceased.
8
Although Dave did not have many concerns when he first arrived, Foster Mother Gloria testified
that he exhibited behavior changes after in-person visits began with Mother, with “every little
thing [being] a full-on tantrum on the floor, screaming.” She testified that Dave would
repeatedly say before family therapy visits that “I do not feel safe. No thank you. I want to go
home.” She testified that since visits ceased Dave has settled and gone back to being “very laid
back” and “chill[] about everything.” Foster Mother Gloria agreed that termination was in the
children’s best interest, but she did not have plans to adopt the brothers; rather, she testified that
another family who had acted as respite care providers were interested in adoption. She also
testified that both boys expressed a desire to live with her and that they did not want to go back
to family therapy with Mother.
Danielle McManus, the foster care case manager, testified about an instance of
sexualized behavior by Marcus in January 2022 when he began kissing Foster Mother’s arm in
an inappropriate way and was disciplined and re-directed by the foster parent. She testified that
she has received other incident reports from daycare and school. She testified that face-to-face
visits were previously cancelled because of concerns about the boys’ behavior and that the boys’
behaviors “once family therapy started were more severe.” McManus testified that Matt
mentioned both wanting to go home with Mom and wanting to return to Foster Mother Claire;
she stated that none of the other boys had expressed a particular interest. When asked further
about Matt’s statements, McManus explained that Matt told her that every time Father “gets out
of jail, he shows up and then he [Matt] comes back into care.”
Veronica Cavazos then testified regarding the six family therapy sessions for
Mother and the children. She explained that the sessions began in October 2021 and that the
children were excited and happy to see Mother. She testified that the children acted normally
9
and she did not see any sexual behaviors, comments, or remarks during the therapy sessions; she
also noted that none of the children expressed any desires about whether they wanted to live with
Mother. She also explained that, during the sessions, Mother was calm, engaged, and tried to
give attention to her children. Cavazos testified that the sessions stopped in January 2022
“because of ongoing behavioral issues going on that were being reported to me,” including
behavioral outbursts, sexual inappropriateness, and aggression towards foster families.
Selena Shabani, the Department caseworker, then testified that the children were
removed in 2020 after being found walking around an apartment complex by themselves and that
there were concerns the children were around Father at the time. She referenced that both Matt
and people around the apartment complex had identified Father as being at the apartment
complex. The children were originally placed with paternal grandmother after removal until
October 2020, when the Department became aware that the children were allowed contact with
Father; the children were then removed to an emergency shelter and then foster placements.
Shabani testified about Mother’s compliance with her service plan, including maintaining and
showing proof of employment and having appropriate housing. She agreed that Mother had been
“pretty compliant” with the service plan requirements, although evidence was admitted of one
failed drug test by Mother at the beginning of the case. Shabani also noted Mother had refused
to take several other drug tests. She explained that Mother had visitation with the children from
roughly January 2021 through June 2021, but those visitations were stopped because of the
children’s worsening behavior, including “tantrums, aggressiveness, enuresis, wetting
themselves, nightmares.” She stated that the children’s behavior improved between June and
October 2021, but then the boys showed “increased behavior” again when the children and
Mother started family therapy in October 2021. Shabani testified that the Department was
10
seeking termination, that she had no concerns about the foster homes providing for the boys and
their needs, and that individuals had been identified to adopt the boys.
On cross-examination, Shabani conceded that she had no knowledge of continued
contact in 2021 between Mother and Father, that Mother was in compliance with her service
plan, and that Mother had not expressed an intention to not comply. However, she expressed
concern that Mother would contact Father if the Department was not involved, and when asked
whether Mother is willing and able to provide a safe and stable home, Shabani qualified her
answer with “[d]uring this case, yes.” When asked whether Mother is able to reduce the risk of
neglect, harm, or abuse to her children, Shabani responded that “[s]he’s able to. Willing is a
different question.” Shabani also confirmed that the issues in the present case—domestic
violence by Father and inability to stay away from Father—were also present in Mother’s
previous case.
The trial was resumed one month later on March 31, 2022. Foster Mother Claire
was recalled to the stand, and she testified that Matt had been demonstrating self-harming
behaviors and putting himself in danger. She described a recent event where Matt endangered
himself by refusing to listen while at an event in a public park and she had to use a personal
restraint technique to calm him. Foster Mother Claire agreed that the more recent behavioral
issues were occurring even though he was not having consistent access to Mother.
Jasmine Warner, the CASA volunteer, testified that termination was in the best
interest of the children and expressed concern about Mother’s “inability or unwillingness to take
responsibility for the reason why her children are in care, as well as her frequent denial or
minimization of the issues that her kids are dealing with.” Warner stated that the potential
adoptive placements are appropriate and all four boys had individually expressed they would like
11
to be adopted. She also expressed concern about Mother’s plans if the boys were returned and
that she did not find Mother’s relationship with her sons to be appropriate. Warner noted that, at
the beginning of the case, she discussed with Mother that providing information on the
“boyfriend” would “clear up any misunderstandings” but that Mother had refused to discuss it
further. Warner clarified on cross-examination that she was not concerned that Mother denied
allegations of sexual abuse, but she emphasized that Mother denies or minimizes behaviors
expressed by the children. Warner also describes instances where Mother had given Warner
false information, such as claiming she had “never in her life failed a drug test” even though she
failed the initial drug test in the present case.
Mother then testified, claiming her children were originally removed because her
“boyfriend” had left them unattended. When asked why Matt identified the boyfriend as Father,
Mother testified that children will “eventually tell an adult what they want to hear.” Mother
admitted that the children observed domestic violence between Mother and Father, but she
denied that she had bathed with the children since they were babies, had touched the children
inappropriately, or had sex or watched pornographic movies in front of the children. Mother
testified that she had maintained legal employment and safe and stable housing. She testified
that she has not failed a drug screen since the initial drug screen two years ago and that the
screenings she missed were because she was at work and unable to leave.
Mother testified that Father was not invited and instead broke into the home in
October 2020 and that she had not seen him in almost two years. She denied allowing Father to
see the children since his rights were terminated. She stated that she only had six family therapy
visits with the children that were inconsistently scheduled, that she was supposed to have more
regular visits, and that she has not had consistent visits with her children throughout the case.
12
She testified that the children are affectionate during family visits, that they still know who she
is, and that they tell her they love her. She expressed plans to place the children into therapy,
school, and daycare, as well as extracurricular sports and activities. She also stated that she
received close out letters about three separate investigations of sexual abuse allegations, and she
emphasized that she has never harmed her children. When asked about the children’s knowledge
of sexual matters beyond their age, Mother testified that she has “not witnessed that part of the
issue with them.” Mother testified that returning the children to her was in their best interest,
that domestic violence was an issue for her in both cases but this time it would be different, and
that the children had expressed a desire to return home during family therapy sessions. Mother
also expressed concern that she did not find Foster Mother Claire truthful. At the end of
Mother’s testimony, the trial court appointed an attorney to investigate whether parental
alienation was occurring.
The third day of trial was held two months later on May 23, 2022. Monica
McClain—the new family therapist for Mother and her two older children—testified that there
had been four sessions and that the visits “go okay.” She expressed concern about the
“influence” of Foster Mother Claire, that there were “signs” of parental alienation, and that she
had concerns of coaching by Foster Mother Claire. McClain clarified that coaching “doesn’t
necessarily mean that they have not been a victim of abuse” but that she did “feel like [Foster
Mother Claire] has told [the older boys] to say stuff” at the therapy sessions. McClain testified
that the children want to see their Mother and they “seem very attached and very open.” She
testified that Mother’s interactions appear appropriate, that she displays love and is very
engaged, and that she is never late to sessions. McClaine testified that termination was not in the
best interest of the children at this time.
13
When asked to describe some of the issues that needed to be addressed, McClain
testified that there are allegations of sexual abuse that are being investigated, and that during one
session Marcus had confronted Mother and said “you sexually abused [Matt],” which Mother
denied. McClain testified that Mother presented fine parenting abilities during the sessions but
that she was “very hesitant” to report about how Mother may be acting outside the sessions.
McClain testified that the brothers had experienced past trauma, including witnessing domestic
violence, and that can constitute neglect or abuse. When discussing a specific outcry, McClain
testified that Matt had said he was taking a shower and Mother “touched his private area”
inappropriately. In response to a question by the court, McClain described Foster Mother Claire
as having “a lot of influence” on the two older brothers. After the witness finished testifying, the
trial court and counsel discussed changing Foster Mother Claire as the placement for the
older boys.
Trial resumed one month later on June 30, 2023. Hicks was recalled and testified
that she had continued to have weekly sessions with the two younger brothers. She testified that
since family therapy visits restarted, Lucas showed increased defiance and pushing boundaries,
and that she had seen a regression in his behaviors. She testified that Dave’s behavior had also
changed since visits resumed, with him becoming more defiant in the playroom and pushing
boundaries. She reiterated that the younger boys’ regression stopped when the family visits with
Mother stopped. On cross-examination, Hicks conceded that she does not know for sure whether
the behavior changes are caused by something Mother has done or are caused by the changes in
seeing and not seeing their mother.
Kim Keever, a forensic interviewer, testified that she interviewed Lucas on
June 14, 2022, and that Lucas did not make an outcry of abuse or neglect in the interview. She
14
testified that she interviewed Dave the same day and that he also did not make an outcry of abuse
or neglect in this interview. She noted that Dave said that he saw Matt touch Marcus’s bottom,
but he did not provide any further information on when or where it occurred.
Cheryl McCarty, another forensic interviewer, testified that Matt did make an
outcry of abuse or neglect during his May 4, 2022 interview. He told her that Mother had put her
hand in his butt and touched his penis in the bathtub. During an extended discussion, McCarty
clarified that Matt had shown that the touching of his penis involved an “open hand back and
forth, but not a closed hand.” She reiterated that Matt said it happened “too much to count” and
that he did not indicate anything was in Mother’s hand. McCarty testified that Matt also told her
that Mother did “inappropriate stuff” to Marcus, and McCarty relayed that Matt said that Mother
had “her hand in [Marcus’s] butt and he was screaming.” She testified that Matt said he had
been sleeping, he went into the bathroom and told Mother to stop, he got his brother and took
him back to his room, and that there was duct tape on his brother’s mouth.
McCarty testified that Marcus made an outcry of abuse or neglect during his
forensic interview the same day. Specifically, McCarty testified that Marcus said his mother
“touched his butt” while he was taking a bath and gestured with his finger “what I would
describe as a back-and-forth poking motion.” She testified that Marcus said he was screaming
and he referenced his brother taking duct tape off of his mouth. McCarty testified that Marcus
said this occurred at Mother’s house and that Marcus said “it was in his bottom.” When asked
whether this was consistent with what Matt described, McCarty responded affirmatively “yes.”
McCarty testified that she had a second forensic interview with Matt on June 15
and that during that interview Matt talked “about his mom touching his penis, and he also talks
about his mom touching his butt.” Comparing the two interviews, McCarty explained that Matt
15
talked about being touched on the penis in both interviews but only spoke about being touched
on the butt in the second interview. McCarty testified that she had a second forensic interview
with Marcus the same day and that Marcus again made an outcry of abuse or neglect. She
testified that he “talks about his mom touching his butt, and then he talks about red stuff in his
butt that she had to get out, and he also talks about duct tape on his mouth.” She confirmed that
Marcus spoke about his Mother penetrating his “butt hole” in both interviews. McCarty clarified
that both boys were able to differentiate between a truth and a lie and were referring to Mother
when they said “mother.” When asked whether either child indicated they had seen anyone else
do the same type of things, McCarty testified that during his second interview Matt said that he
saw Father touching Mother inappropriately in the same way. McCarty testified that both Matt
and Marcus “said no one has told them what to say.” When asked whether it’s possible that the
boys could have just been getting a bath, she responded “yes, it’s possible.”
Atwood returned to the stand and testified that she had continued therapy sessions
with Matt and Marcus since the last hearing. She testified that in April, Matt shared with her that
Mother had put her hand on his butt and that Mother had been inappropriate with Marcus. When
asked whether Matt has indicated he wants to be reunited with Mother, Atwood testified that
there have been times that he has wanted to go home but also that he is “afraid that his mom will,
in his words, do bad things,” that he’s scared, and that he would prefer to be adopted. Atwood
testified that Matt’s behavior has escalated, that he has a lot of outbursts, and that he struggles
with respect for authority since he restarted visits with Mother. She confirmed that his behavior
improves when he no longer sees Mother. Atwood testified that Marcus has not made any new
statements about Mother but that his behavior has escalated in aggression and outbursts since
visitation resumed. She reiterated her earlier testimony that she does not believe it is in the best
16
interest of Matt or Marcus for them to have continued contact with Mother. On cross-
examination, Atwood testified that consistency is important for children, that consistency affects
behavior, and that regularity in seeing their mother and then stopping visits “could affect their
behavior.” In response to whether she could definitively say the reason for the outbursts is based
upon wrongdoing by Mother, Atwood replied “no, I cannot.”
Erin Mendoza testified that she has been Mother’s therapist since July 2021. She
testified that they had worked on improving relationships, recognizing domestic violence
warning signs, and nurturing parenting skills. She discussed the “significant achievement” that
Mother had improved her relationship with her own mother. When asked whether Mother
should have contact with her children, Mendoza testified that “[f]rom my information from
seeing [Mother], yes,” but she cautioned that whether it would be in the best interest of the
children to continue family therapy would depend on the family therapist’s recommendation.
Mendoza’s testimony continued one month later on July 28, 2022, the fifth and
final day of trial. She testified that Mother told her she had left the children with her boyfriend
and denied that she had actually left the children with Father. She recalled that Mother has
diagnoses for generalized anxiety disorder and post-traumatic stress disorder (PTSD), and she
clarified that the PTSD stems from “abuse and neglected childhood, and then also domestic
violence” from the relationship with Father. She testified that she and Mother had discussed that
there were sexual abuse allegations but they had been ruled out. Mendoza conceded she did not
have contact with the children during the current proceeding.
Foster Mother Joan, who previously acted as a foster mother for the children
during a previous removal, testified that she had no issues with how Mother interacted with the
children and that she never witnessed any “alarming behavior.” She testified that the children
17
never acted inappropriately after the visits and that she never observed any sexual behaviors or
actions from the boys. On cross-examination, she conceded that she had not seen the children
since before their removal at the beginning of the current case.
Mother then returned to the stand. Regarding the forensic interviews where there
was a discussion about one child’s “bottom being red,” Mother testified that she did not “a
hundred percent remember” but explained that the children loved Takis (a spicy snack food), that
the food irritates their stomach and causes “explosive diarrhea,” and that she used butt cream to
clear up the rash. She testified that the children use the bathtub “like a swimming pool,” that she
supervises the children, but that she had never been inappropriate with the children. Mother
testified that she has not been dating, and she reiterated that her boyfriend at the beginning of the
case and Father are “two very different people.” She expressed fear of Father, that she misses
her children, and that she still has rooms set up for the children. She asked the trial court not to
terminate her parental rights, and she reiterated that she has done “nearly everything” she was
ordered to do. She confirmed that she would be able to make arrangements for school and
daycare if the children were returned to her. She also described her support system and stated
that she has spoken with her store management and co-workers and that “they understand that
things are going to change when my children come home.”
Mother reiterated that she was “completely denying your sexual allegations,”
including denying putting duct tape on the boys’ mouths and stating she did not “even own duct
tape.” When discussing testimony about the boys’ statements regarding sexual abuse and
testimony that the children do not want to return home, Mother testified that the trial court
should believe her rather than the children. She admitted that the children “have witnessed some
things happen to me,” and when asked for clarification, she testified that the children had
18
witnessed “[t]heir father hurting me and doing things to me that aren’t right.” She stated that she
intends to continue family therapy with the same therapist if the children are returned to her.
Mother testified that she never heard her children use “big words” like “inappropriate” before
residing with Foster Mother Claire.
Foster Mother Gloria testified that after family therapy restarted for the younger
two children, Lucas regressed to wearing pull ups and would “urinate and defecate on himself
multiple times a day,” when before he had not worn any diapers or pull-ups since March 2021.
She testified that Lucas also attempted to “open mouth” kiss her on two occasions, which she
stopped. She testified that Lucas’s potty-training improved after several weeks once family
visits stopped, and now he’s no longer on pull ups and only has an accident “once every couple
weeks, but that’s fairly typical for him.” She also testified that there have been no other
sexualized behaviors; she noted that the last sexualized behavior before these instances was on
February 1, 2022, a few days after a family therapy session.
Foster Mother Gloria stated that Dave became very emotional after the visits and
would have meltdowns that “would be over 45 minutes.” She stated he would start biting
himself again, banging his head “mostly on pillows,” and was “unable to self-regulate and calm
down.” She testified that after the family therapy sessions ceased, Dave returned to only taking
“about three to four minutes to calm down,” and she indicated that he is able “to self-regulate
much better.” She explained that Lucas starts kindergarten soon, and if he is not fully potty-
trained at that time, he would be placed in a special education classroom. When asked whether
the children’s behaviors consistently became negative after family therapy visits with Mother,
Foster Mother Gloria responded “yes.”
19
Foster Mother Kimberly testified that Matt and Marcus were placed with her at
the end of May 2022. She testified that sometimes Matt’s behavior escalates and he tries to
“run,” such as one instance at a grocery store, and that he was removed from one daycare
because of “violence.” When describing how the children react when seeing Mother at family
therapy sessions, she said that “you can tell that they’re glad to see her” but she said they were
also “indifferent, I guess, in some ways,” contrasting that the boys’ reaction was not the
excitement she’d see on other children in similar situations. She described a conversation with
Matt in the car where he seemed “conflicted with what his desires are and why,” and when she
asked whether he would like to live with Mother, he responded that “Yeah, I think so. But I
want to be adopted.” Speaking of living with Mother, Matt continued that “I think it would be
okay because she’s promised that she wouldn’t do those things anymore.” Foster Mother
Kimberly stated that Marcus is “much more emotional” in the days following the family therapy
visits, and that Matt tends to have a “shorter fuse.” She testified that the older boys do see their
younger siblings on a regular basis, and she said she had no concerns about the boys interacting
with each other.
After hearing closing arguments, the associate judge found that termination of
Mother’s parental rights was in the best interest of the children and was supported pursuant to the
statutory grounds under subsections (D) and (E). See Tex. Fam. Code § 161.001(b)(1)(D)
(endangering environment), (E) (endangering conduct). Mother requested de novo review on
August 2, 2022. The de novo hearing was rescheduled several times before finally being held
almost six months later on February 10, 2023. 3
3
In the interim, an order of termination consistent with the associate judge’s ruling was
signed on September 27, 2022.
20
Kalyn Noyes, the Department’s conservatorship specialist, testified that the case
had been transferred to her in April 2022. She summarized the history of the proceeding, and
she confirmed that the Department had never been able to locate the “boyfriend” of Mother.
Noyes testified that, based on the Department files, the Department also believed that Father was
around the children after his rights had been terminated, separate from the June 2020 and
October 2020 incidents. She expressed concern that Mother viewed the service plan as a
“checklist,” that the service plan was more than that and required showing “substantial
behavioral change,” and that Mother did not change her behavior. Noyes reviewed the sexual
abuse outcries by the older children and their forensic examinations. She testified that the boys’
multiple forensic interviews were consistent. She explained that family therapy sessions were
attempted multiple times, and she described the negative behaviors exhibited by the children,
including aggression, “sleep regression,” and regression of potty training, that led to therapy
being stopped. She also reiterated the sexualized behaviors exhibited by some of the children.
She explained that the behaviors of the children returned to “[n]ormal for them” once
therapy stopped.
Noyes testified that there was concern of coaching or alienation as to the older
two children, and after the two children were moved to a new foster placement, Matt’s behaviors
changed but were still concerning. She confirmed that the two older children—Matt and
Marcus—had knowledge of sexual things beyond their years. She testified that the children are
currently placed in prospective adoptive placements and that adoption was in their best interest.
When asked whether Mother could provide safe and suitable housing, Noyes mentioned that
Mother “was couch surfing and living in her car.” She testified that Mother identified her
mother and sister as part of her support system but that Mother had told Noyes that “her support
21
system is not local.” Noyes testified that Mother currently has an ankle monitor and cannot be
within a specified distance of the older two children. She testified that the foster parents are able
to provide safe, suitable, and appropriate housing for the children, and the children continue to
have regular contact with each other. She testified that Lucas and Dave refer to their current
placement as their “new forever home.” She stated that the children’s behavior has “been
improving substantially” since they stopped having visits with Mother.
When asked about Father breaking into the home in October 2020, Noyes
explained that the Department wouldn’t consider it as him “breaking into the apartment when he
was allowed to be there.” Noyes confirmed that there was a protective order in place at the end
of the first case, and when asked whether allowing Father around the children was a blatant
disregard for court orders, Noyes responded “yes.” She testified that she had no concerns about
the children’s current placements meeting their needs in the future, but she expressed concern
about whether Mother could meet “basic needs.” She testified that neither Matt nor Marcus has
expressed a desire to go back to living with Mother.
Foster Mother Gloria then testified, reiterating how Dave would repeatedly state
“I do not feel safe. No, thank you. I want to go home” before family therapy visits with Mother.
She indicated that there is a possibility that Lucas has special needs. She reiterated that after
visits with Mother, Lucas would have increased aggression and frustration, and that Dave had
regressions in his potty training. She explained that the children’s behavior improved after the
visits ended. She explained that during the time when there were no visits, “[w]e saw the self-
harming behavior stop and cease [and w]e saw the sexualized behaviors stop and cease.” She
testified that the boys were no longer placed with her but that she believed the current home for
Lucas and Dave was safe and suitable and met their needs.
22
Mother testified that she is currently homeless and has been sleeping in her car or
in people’s spare rooms or on their couches. She testified that she is currently employed at a
convenience store where she was rehired after a three month break and that she is not currently
in a relationship. When asked why she did not present the boyfriend to the Department, she
responded that “I didn’t feel the need to have any sort of more involvement with somebody who
just up and left, for whatever reason, my kids alone.” She stated she does not know where the
boyfriend now lives and that she “[l]iterally cut him off that day.” She testified that Father did
not have access “by choice” to the children after his rights were terminated, and she reiterated
that Father broke into her home in October 2020. She stated that, during that incident, Father
“kicked in the back door, put a couple of holes in the wall, and abused me in front of” Matt and
Marcus. She testified that Father assaulted her but did not sexually assault her “that time.”
Mother responded “No. Yeah. No. I don’t remember” when asked whether she had contact
with Father after he broke into her home and assaulted her.
Mother identified her family, including her mother and sister, as part of her
support system, but clarified that they live in the Houston area and she does not live with them
“[d]ue to the legal situation.” Mother conceded that there are current pending charges against
her, with Matt and Marcus as the victims. 4 When asked why she does not yet have an apartment,
she stated that she was waiting for the outcome of the termination case. Mother stated that she
was requesting a monitored return to give her time to switch over medical needs and get the
apartment prepared, that she had “no issue keeping their same therapist,” and that she would be
willing to reach out for assistance from local organizations. Mother testified that she is planning
on moving into an apartment in the Houston area that is geographically close to her family
4
She later testified that she had not been indicted on criminal charges.
23
members. Mother agreed she would keep open communication with the foster placements even
after the children were returned to her care. Mother stated that her bond condition requires her to
be 1,000 feet away from her two older children. When asked what her plan was for caring for
Matt and Marcus if they were returned and the bond condition was still in place, she mentioned
that the boys could go to her sister “if need be.”
Foster Mother Claire returned to the stand to discuss the original foster placement
for Matt and Marcus. She reiterated that the boys’ behavior was “[f]or the worse” after visits but
would change for the better once visits stopped. Foster Mother Claire testified that after the
therapeutic visits stopped in January 2022, the boys were “very well-adapted at home but were
having a lot of problems at school with behaviors still.” She testified that the boys again had
more behavior issues during the second round of therapeutic visits starting in April 2022. She
described one instance with Marcus where he, after a visit, sat in her lap and “tried to grab [her]
breast and kiss [her] sexually on the mouth.” She testified that the older boys had knowledge of
sexual things beyond their years, demonstrated by their actions, and that Marcus would sexually
act out towards her after visits with Mother. However, she noted that the boys and Mother
appeared to have affectionate, but appropriate, interactions when she observed them interacting
in general settings.
Jane Bowen, the guardian ad litem, testified that CASA believes the best interest
of the children is termination of Mother’s parental rights. She expounded that Mother has “never
been willing to be honest about the incident that brought the kids into care” and that she’s not
capable of caring for the children. She noted that the children made a lot of progress in foster
care, but every “time we tried to start visits, they would regress and it would get worse again.”
Bowen testified that she did not believe Mother has the skills, resources, or support system to
24
manage the children. She testified that the younger two children are “happy in their forever
home” and that the older two children said they want to be adopted. Bowen also identified the
“huge positive change” for the older two children in their current foster placement. Under
further questioning, Bowen testified that Mother had presented multiple plans, that she had one
viable plan previously “when she was working and had the apartment with the two bedrooms,”
but that her more recent plans described during the de novo hearing were not viable. She
testified that Mother did not have “a good relationship with her family throughout this case.”
On March 9, 2023, the trial court signed an order on Mother’s request for de novo
hearing, affirming the July 28, 2022 decision by the associate judge and finding by clear and
convincing evidence that subsections (D) and (E) supported termination and that terminating
Mother’s parental rights was in the children’s best interest. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (b)(2). This appeal followed.
STANDARD OF REVIEW
To terminate the parent-child relationship, a court must find by clear and
convincing evidence that (1) the parent has committed one of the enumerated statutory grounds
for termination and (2) it is in the child’s best interest to terminate the parent’s rights. Tex. Fam.
Code § 161.001(b). Clear and convincing evidence is “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” Id. § 101.007.
In this context, “[t]he distinction between legal and factual sufficiency lies in the
extent to which disputed evidence contrary to a finding may be considered.” In re A.C.,
560 S.W.3d 624, 630 (Tex. 2018). When determining legal sufficiency, we consider whether “a
25
reasonable factfinder could form a firm belief or conviction that the finding was true” when the
evidence is viewed in the light most favorable to the factfinder’s determination and undisputed
contrary evidence is considered. Id. at 631. When determining factual sufficiency, we consider
whether “in light of the entire record, the disputed evidence a reasonable factfinder could not
have credited in favor of a finding is so significant that the factfinder could not have formed a
firm belief or conviction that the finding was true.” Id. We must “provide due deference to the
decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand,
is the sole arbiter when assessing the credibility and demeanor of witnesses.” In re A.B.,
437 S.W.3d 498, 503 (Tex. 2014); see also In re P.A.C., 498 S.W.3d 210, 214 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied).
However, “an appellate court’s review must not be so rigorous that the only
factfindings that could withstand review are those established beyond a reasonable doubt.” In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002). “While parental rights are of constitutional magnitude, they
are not absolute.” Id. “Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.” Id.DISCUSSION
In her first issue, Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings under Subsections (D) and (E). In her second issue,
Mother challenges the legal and factual sufficiency of the evidence supporting the trial court’s
best interest finding.
26
Statutory Predicate Grounds
Subsection (D) “focuses on the child’s environment and may be utilized as a
ground for termination when the parent has ‘knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being of the
child.’” In re J.W., 645 S.W.3d 726, 749 (Tex. 2022) (quoting Tex. Fam. Code
§ 161.001(b)(1)(D)). Subsection (E) focuses on a parent’s conduct and “allows for termination
of parental rights if clear and convincing evidence supports that the parent ‘engaged in conduct
or knowingly placed the child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child.’” In re N.G., 577 S.W.3d 230, 234 (Tex. 2019)
(per curiam) (quoting Tex. Fam. Code § 161.001(b)(1)(E)).
The relevant inquiry under Subsection (D) is whether “the child’s environment,
including the child’s living conditions and conduct by parents or others in the home, endangered
the child’s well-being.” J.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00274-CV,
2021 WL 5225432, at *5 (Tex. App.—Austin Nov. 10, 2021, pet. denied) (mem. op.). “A single
act or omission can support termination under subsection (D).” J.G. v. Texas Dep’t of Fam. &
Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.). In contrast, the
relevant inquiry under Subsection (E) is whether evidence exists that the endangerment of the
child’s well-being “was the direct result of Appellant’s conduct, including acts, omissions, or
failures to act,” In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet.
denied), and “must be based on more than a single act or omission,” C.B. v. Texas Dep’t of Fam.
& Protective Servs., 458 S.W.3d 576, 582 (Tex. App.—El Paso 2014, pet. denied).
For both the child’s environment under Subsection (D) and the parent’s conduct
under Subsection (E), “endanger” means “to expose to loss or injury; to jeopardize.” In re J.W.,
27
645 S.W.3d at 748 (quoting Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987)). “‘[E]ndanger’ means more than a threat of metaphysical injury or the possible ill effects
of a less-than-ideal family environment, [but] it is not necessary that the conduct be directed at
the child or that the child actually suffers injury.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)
(quoting Boyd, 727 S.W.2d at 533); see also A.C. v. Texas Dep’t of Fam. & Protective Servs.,
577 S.W.3d 689, 699 (Tex. App.—Austin 2019, pet. denied). “Because the evidence pertaining
to subsections (D) and (E) is interrelated, we consolidate our review of the evidence.” J.M.,
2021 WL 5225432, at *5.
As described above, Department representatives testified that the children were
removed after they were found unattended at an apartment complex; that Mother testified she left
the children with her “boyfriend,” but the oldest child stated that Mother’s boyfriend was
actually Father; and that the Department believed Mother was still allowing Father around the
children in violation of a protective order. The children were also moved to a new placement
after October 2020 when Father “broke in[to]” paternal grandmother’s house, committed
domestic violence against Mother, and then took Mother’s car. See In re P.W., 579 S.W.3d 713,
727 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“Evidence of domestic violence may be
considered as evidence of endangerment under subsection (E).”). Mother confirmed that the
children had witnessed domestic violence by Father against Mother, but Mother repeatedly
testified that she had no further contact with Father after the October 2020 incident and that she
was afraid of Father. See N.P. v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00217-
CV, 2019 WL 3952842, at *8 (Tex. App.—Austin Aug. 22, 2019, no pet.) (mem. op.)
(“[E]vidence of a recent turn-around in behavior by the parent does not totally offset evidence of
a pattern of instability and harmful behavior in the past.” (quoting Smith v. Texas Dep’t of
28
Protective & Regul. Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.)). However,
Sharp testified that there were approximately four previous intakes regarding domestic violence
between Mother and Father over three or four years, and she expressed concern that Mother
would continue “to stay in this pattern” of completing services and then continue to see Father
and bring the children around him. See C.B., 458 S.W.3d at 582 (explaining that endangering
conduct must be “by the parent’s actions” or “by the parent’s omission or failure to act”).
McManus further testified that the oldest child had told her that every time Father “gets out of
jail, he shows up and then he comes back into care.” See In re J.E.M.M., 532 S.W.3d 874, 881
(Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A child is endangered when the environment
creates a potential for danger and the parent is aware of the danger but consciously disregards
it.”). Noyes similarly testified that the Department would not consider the October 2020 incident
as Father “breaking into the apartment when he was allowed to be there.” Further, the children
(except the youngest who was not yet born) had previously been removed from Father’s and
Mother’s custody in the past; Mother completed her services and obtained the return of her
children, but Father’s rights were terminated and the protective order against him was issued.
However, Shabani and others testified that Mother still allowed Father around the children in the
subsequent months. See S.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00695-CV,
2022 WL 2542007, at *11 (Tex. App.—Austin July 8, 2022, pet. denied) (mem. op.)
(considering repeated endangering conduct across multiple Department cases).
There was also evidence of sexual abuse by Mother. For example, McCarty
testified about forensic interviews of both Matt and Marcus during which they made outcries of
sexual abuse by Mother. McCarty noted that the brothers’ separate interviews were consistent
and that the boys were able to differentiate between telling the truth and lying. She also noted
29
that Matt’s two forensic interviews were consistent that Mother had sexually touched Matt’s
penis, and Marcus’s forensic interviews were consistent regarding Mother touching his butt.
Noyes reiterated that the sexual abuse outcries interviews were consistent. See In re E.A.R.,
583 S.W.3d 898, 908 (Tex. App.—El Paso 2019, pet. denied) (“The child’s environment refers
to the suitability of the child’s living conditions as well as the conduct of parents or others in the
home.”). Mother denied the allegations, stated that she never harmed her children, and testified
that earlier sexual abuse allegations had been investigated and “closed out” by the Department.
But at the time of the de novo hearing, Mother was prohibited from being within 1,000 feet of
either Matt or Marcus. See In re C.J.P., No. 05-22-00233-CV, 2022 WL 7936574, at *13 (Tex.
App.—Dallas Oct. 14, 2022, pet. denied) (mem. op.) (explaining that physical and sexual abuse
by parent weighs in favor of terminating parental rights). Moreover, Warner previously testified
about Mother’s “inability or unwillingness to take responsibility for the reason why her children
are in care, as well as her frequent denial or minimization of the issues that her kids are dealing
with.” The trial court as fact finder was the “sole arbiter” of Mother’s credibility and was free to
weigh Mother’s testimony against the other testimony presented during trial. See In re A.B.,
437 S.W.3d at 503; see also In re P.A.C., 498 S.W.3d at 214.
We conclude that this evidence is legally and factually sufficient to support the
district court’s finding that Mother knowingly placed or knowingly allowed the children to
remain in conditions and surroundings which endangered their physical or emotional well-being
and its finding that Mother engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangered their physical or emotional well-being. See Tex.
Fam. Code § 161.001(b)(1)(D)–(E). We overrule Mother’s first issue.
30
Best Interest Finding
In her second issue, Mother challenges the legal and factual sufficiency of the
evidence supporting the best interest finding. “[T]here is a strong presumption that the best
interest of a child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam). “In parental-termination proceedings, [the Department’s] burden is
not simply to prove that a parent should not have custody of [the] child; [the Department] must
meet the heightened burden to prove, by clear and convincing evidence, that the parent should no
longer have any relationship with the child whatsoever.” S.B. v. Texas Dep’t of Fam. &
Protective Servs., 654 S.W.3d 246, 255 (Tex. App.—Austin 2022, pet. denied) (quoting In re
D.L.W.W., 617 S.W.3d 64, 81 (Tex. App.—Houston [1st Dist.] 2020, no pet.)).
We may consider nine factors to determine whether termination is in a child’s
best interest: the child’s wishes, the child’s emotional and physical needs now and in the future,
any emotional or physical danger to the child now and in the future, the parenting abilities of any
parties seeking access to the child, programs available to help those parties, plans for the child,
the stability of any proposed placement, any evidence that the parent-child relationship is
improper, and any excuses for the parent’s conduct. Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976); see also In re A.C., 560 S.W.3d at 631; S.B., 654 S.W.3d at 255. The party seeking
termination has the burden of establishing that termination is in the child’s best interest. See
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The set of factors is not exhaustive; although one
factor is not necessarily dispositive, in some instances evidence of a single factor may suffice to
support the best interest finding. See Holley, 544 S.W.2d at 371–72; see also In re C.H.,
89 S.W.3d at 27; S.B., 654 S.W.3d at 255. Ultimately, the Holley factors focus on the child’s
best interest, not the parent’s. In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.—Tyler 2003,
31
no pet.). Evidence proving one or more statutory grounds for termination can be probative
evidence that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 28.
We begin with the children’s wishes. Although Mother testified that the children
had expressed during family therapy sessions that they wanted to return home, Cavazos (the
original family therapist) testified that the children did not express any desire about wanting to
live with Mother. See In re P.A.C., 498 S.W.3d at 214 (explaining that trier of fact is judge of
witness’s credibility and weight given to testimony). Furthermore, Bowen (the guardian ad
litem) testified that the older two children stated that they wanted to be adopted, and Warner (the
CASA volunteer) testified that all four children had individually expressed that they wanted to be
adopted. At most, there was testimony showing that Matt, the oldest child, had indicated he had
conflicting desires about returning to his Mother or being adopted. However, Atwood testified
that Matt indicated that he was scared and “afraid that his mom will . . . do bad things” if he
returned, and Foster Mother Kimberly testified that Matt qualified his desire to return by stating
it would be okay “because she’s promised that she wouldn’t do those things anymore.” See Tex.
Fam. Code § 263.307(b)(5) (requiring consideration of “whether the child is fearful of living in
or returning to the child’s home”).
When considering the children’s physical and emotional needs, any emotional or
physical dangers to the children now and in the future, and the potential placements for the
children, “it is well settled that stability and permanence are paramount considerations in
evaluating the needs of a child.” N.K. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-
00028-CV, 2022 WL 2673236, at *8 (Tex. App.—Austin July 12, 2022, no pet.) (mem. op.).
The record is replete with testimonial evidence that the children exhibited worsening behavior,
including physical aggression and sexually inappropriate behavior, whenever the children had
32
visitation with Mother and that the behavior improved once visits stopped. Sharp testified that
there were approximately four previous intakes regarding domestic violence between Mother and
Father, and she expressed concern that Mother continued “to stay in this pattern” of completing
recommended services and then going “back to doing what she is not supposed to be doing.”
Shabani similarly testified that the issues in the present termination proceeding were also present
in Mother’s previous case. Moreover, Department caseworkers also testified about their
concerns that Father was allowed around the children even after a protective order was entered
after the previous case. See J.G., 592 S.W.3d at 525 (“[A] trier of fact may measure a parent’s
future conduct by [her] past conduct and determine whether termination of parental rights is in
the child’s best interest.” (quoting In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio
2015, no pet.))). Although Mother denied she allowed Father to see the children after his rights
were terminated and testified that she had no contact with Father after his break-in in October
2020, Mother also admitted that the children had observed domestic violence between Mother
and Father. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied)
(concluding evidence of “history of neglecting and endangering the children, of exposing them to
domestic violence” weighs in favor of best interest finding).
Further, testimony indicated that Mother’s “boyfriend” who she left the children
with unattended was actually Father, that the Department could not locate the supposed
boyfriend, and that Mother had no answer and “refused to discuss it further” when Warner told
Mother that providing the boyfriend’s information would “clear up” confusion. In response,
Mother only testified that she did not know where the boyfriend now lives, that she had
“[l]iterally cut him off that day,” and that she “didn’t feel the need to have any sort of more
involvement with somebody who just up and left.” See E.F.-B. v. Texas Dep’t of Fam. &
33
Protective Servs., No. 03-22-00443-CV, 2022 WL 17478423, at *4 (Tex. App.—Austin Dec. 7,
2022, no pet.) (mem. op.) (“[A] trial court is not bound to accept the truth or accuracy of a
parent’s testimony, either as to past actions or future intentions.”).
Similarly, Mother testified during trial that she had maintained safe and stable
housing for her children as well as legal employment. Mother also testified about her plans for
placing the children in therapy, school, and daycare, as well as extracurricular activities.
However, by the time of the de novo hearing, Mother was homeless, sleeping in her car or on her
friends’ couches or in their spare rooms. She testified that she was on a waiting list for an
apartment but did not want to get the apartment before knowing whether the children were going
to be returned. Mother also was prohibited from being within 1,000 feet of the two oldest
children because of a bond condition relating to pending charges against her, and she therefore
stated that her children could live with her sister while resolving those outstanding issues.
Although Mother identified her family members as part of her support network, Bowen testified
that Mother did not have “a good relationship with her family throughout the case.” She further
testified that Mother’s plans described during the de novo hearing were not viable, and Warner
previously expressed concern that Mother’s previous plans for the children did not incorporate
the particular needs of the individual children. In contrast, there was testimony that the children
at the time of the de novo trial wanted to be adopted by their current placements, that the
children had regular sibling contact, that the younger children referred to their placement as their
“forever home,” and that the children’s needs were being met at the placements.
Finally, we consider evidence of behavior indicating that the parent-child
relationship is improper and any excuses for said behavior. Holley, 544 S.W.2d at 371–72. As
discussed above, there was extensive testimony that Mother had sexually abused at least her
34
older two children. That included McCarty testifying about multiple, consistent forensic
interviews where Matt said that Mother did “inappropriate stuff” to him, and McCarthy testifying
that Marcus said that Mother had touched his penis, as well as Marcus telling McCarty that
Mother had touched his buttock during a bath and that Marcus had been screaming. Mother
denied those allegations and noted that earlier sexual abuse allegations had been investigated and
“closed out” by the Department, but by then Mother was facing pending charges and was
prohibited from being within 1,000 feet of either Matt or Marcus. See In re C.J.P., 2022 WL
7936574, at *13 (explaining that physical and sexual abuse by parent weighs in favor of
terminating parental rights). Moreover, Warner previously testified about Mother’s “inability or
unwillingness to take responsibility for the reason why her children are in care, as well as her
frequent denial or minimization of the issues that her kids are dealing with.”
Reviewing the record under the appropriate standards of review and considering
the relevant factors, we conclude that the trial court could have reasonably believed that
termination was in the children’s best interest. See In re C.H., 89 S.W.3d at 27. Moreover, there
is not any disputed evidence that is so significant as to prevent the district court from forming
that firm conviction. In re A.C., 560 S.W.3d at 630. We conclude that this evidence is legally
and factually sufficient to support the district court’s finding that termination of Mother’s
parental rights was in the best interest of the children. We overrule Mother’s second issue. 5
5
Mother also argues that the trial court abused its discretion by appointing the
Department as permanent managing conservator. See Tex. Fam. Code § 153.131(b). However,
that section is inapplicable because it only creates “a statutory preference for placement with a
parent while a parent still retains [his] parental rights.” T.J. v. Texas Dep’t of Fam. & Protective
Servs., No. 03-14-00351-CV, 2014 WL 6845198, at *5 (Tex. App.—Austin Nov. 25, 2014, no
pet.) (mem. op.). Mother, however, no longer enjoys any conservatorship presumption after her
parental rights have been terminated. See Tex. Fam. Code § 101.024(a) (noting that for purposes
of Family Code, “the term [parent] does not include a parent as to whom the parent-child
35
CONCLUSION
Having concluded there was sufficient evidence supporting the trial court’s
termination under subsection (D) and (E) and its best interest finding, we affirm the trial court’s
final decree terminating Mother’s parental rights to the children.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: August 11, 2023
relationship has been terminated”). Mother has failed to demonstrate her entitlement to
appointment as managing conservator under Section 153.131. See In re M.S., No. 02-21-00007-
CV, 2021 WL 2654143, at *21 (Tex. App.—Fort Worth June 28, 2021, pet. denied) (mem. op.)
(concluding no abuse of discretion in appointing Department after termination of parent’s
parental rights). We overrule her final issue.
36