In the Interest of F.S., a Child v. the State of Texas ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-24-00048-CV
IN THE INTEREST OF F.S., A CHILD
On Appeal from the County Court at Law
Bowie County, Texas
Trial Court No. 23C0251-CCL
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
The trial court removed F.S.1 from the care of Father and his wife, Bonnie, after finding
that there was an immediate danger to the physical health or safety of the child and that F.S. had
been the victim of sexual abuse or trafficking. It also named the Texas Department of Family
and Protective Services as his temporary sole managing conservator.2 About fourteen months
later, the trial court terminated Father’s parental rights after finding that there was clear and
convincing evidence under statutory grounds D and E3 to support the termination of his parental
rights and that the termination of his parental rights was in the best interest of F.S.4
In this appeal, Father asserts that (1) there was legally and factually insufficient evidence
to support the trial court’s findings under grounds D and E and (2) there was legally and
factually insufficient evidence to support the trial court’s finding that termination of his parental
rights was in the best interest of F.S. Because we find that (1) sufficient evidence supported the
trial court’s findings under statutory ground E and (2) Father waived his challenge to the trial
court’s best-interest finding, we will affirm the trial court’s judgment.
1
All minor children and their parents will be referred to either by their initials or by fictitious names. See TEX. R.
APP. P. 9.8.
2
When removed, F.S. was residing with Father and Bonnie, their three children, C.B., J.B, and B.B., and Bonnie’s
two children, A.L. and E.B. Our cause number 06-24-00047-CV concerns, in part, the appeal of the termination of
Father’s parental rights to C.B., J.B., and B.B.
3
See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) (Supp.).
4
The trial court also terminated the parental rights of F.S.’s mother, but she is not a party to this appeal.
2
I. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “This Court is . . . required to
‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to
support the termination of parental rights.’” Id. (quoting In re A.B., 437 S.W.3d at 500).
“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (alteration in
original) (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied)).
“In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re
E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘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. (quoting TEX. FAM. CODE ANN. § 101.007 (citing
In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof necessarily affects our
review of the evidence.” Id.3
“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the . . . fact-finder[] resolved disputed facts in favor of the finding, if a reasonable fact-
finder could do so, and disregarded evidence that the fact-finder could have reasonably
disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re J.P.B., 180
S.W.3d at 573).
“In our review of factual sufficiency, we give due consideration to evidence the [fact-
finder] could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 109 (Tex. 2006) (per curiam)). Also, we “consider whether disputed evidence is
such that a reasonable fact[-]finder could not have resolved that disputed evidence in favor of its
finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). “If, in light of the entire record, the
disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is
so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction,
then the evidence is factually insufficient.” Id. “In applying this standard, ‘[a]n 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 H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
(per curiam) (alteration in original) (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).
4
“‘[I]n making this determination,’ we must undertake ‘“an exacting review of the entire
record with a healthy regard for the constitutional interests at stake.”’” In re L.E.S., 471 S.W.3d
at 920 (alteration in original) (quoting In re A.B., 437 S.W.3d at 503). We “must nevertheless
still provide due deference to the decisions of the fact[-]finder, 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) (citing In re J.L., 163
S.W.3d 79, 86–87 (Tex. 2005)). “We also recognize that . . . the fact-finder . . . may believe all,
part, or none of a witness’ testimony.” In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at
*3 (Tex. App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M., 209
S.W.3d at 109).
“Despite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘“the rights of natural parents are not absolute; protection of the child is
paramount.”’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.
2003)). “A child’s emotional and physical interests must not be sacrificed merely to preserve
parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015,
no pet.)).
“Only one predicate finding under Section 161.001[b](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best
interest.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.
denied)). “Even so, when the trial court’s findings under grounds D or E are challenged on
appeal, due process demands that we review the evidence supporting the findings under at least
5
one of those grounds.” In re A.B., No. 06-22-00020-CV, 2023 WL 7475743, at *2 (Tex. App.—
Texarkana Nov. 13, 2023, pet. denied) (mem. op.) (citing In re N.G., 577 S.W.3d 230, 237 (Tex.
2019) (per curiam) (“We hold that due process and due course of law requirements mandate that
an appellate court detail its analysis for an appeal of termination of parental rights under
[S]ection 161.001(b)(1)(D) or (E) of the Family Code.”). “This is because termination of
parental rights under these grounds may implicate the parent’s parental rights to other children.”
Id. (citing In re N.G., 577 S.W.3d at 234; TEX. FAM. CODE ANN. § 161.001(b)(1)(M)).
II. Sufficient Evidence Supports the Trial Court’s Findings Under Statutory Ground E
A. Statutory Ground E Requirements
Parental rights may be terminated under statutory ground E “if the court finds by clear
and convincing evidence . . . that the parent has . . . engaged in conduct . . . which endangers the
physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
“‘[E]ndanger’ means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re L.E.S., 471 S.W.3d at 923; In re N.S.G., 235
S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.). “It is not necessary that the conduct be
directed at the child or that the child actually suffer injury.” In re L.E.S., 471 S.W.3d at 923.
“Under subsection (E), it is sufficient that the child’s well-being is jeopardized or exposed to loss
or injury.” Id. (citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367). “Further,
termination under subsection (E) must be based on more than a single act or omission. Instead, a
‘voluntary, deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting
Perez v. Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso
6
2004, no pet.)); see Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67. Nevertheless,
the parent’s conduct includes both the parent’s acts and its omissions or failures to act. In re
S.K., 198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied); In re N.S.G., 235 S.W.3d at
366–67.
“[E]ndangering conduct may include the parent’s actions . . . while the parent had
custody of older children . . . .” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (citing Boyd, 727
S.W.2d at 533). “[C]onduct that subjects a child to a life of uncertainty and instability endangers
the physical and emotional well-being of a child.” In re J.L.B., 349 S.W.3d 836, 848 (Tex.
App.—Texarkana 2011, no pet.) (alteration in original). Further, “the parent’s conduct need not
be directed at the child or actually cause the child injury; ‘[t]he specific danger to the child’s
well-being may be inferred from parental misconduct standing alone.’” In re R.H., 693 S.W.3d
846, 856 (Tex. App.—Fort Worth 2024, pet. denied) (alteration in original) (citing In re M.B.,
No. 02-15-00128-CV, 2015 WL 4380868, at *12 (Tex. App.—Fort Worth July 16, 2015, no pet.)
(mem. op.)). “Courts may consider a parent’s conduct that occurred outside the child’s presence
or after the child’s removal by the Department.” Id. (citing In re M.S., No. 02-20-00147-CV,
2020 WL 6066400, at *4 (Tex. App.—Fort Worth Oct. 15, 2020, no pet.) (mem. op.)). Also,
“intentional criminal activity which expose[s] the parent to incarceration is relevant evidence
tending to establish a course of conduct endangering the emotional and physical well-being of
the child.” In re L.E.S., 471 S.W.3d at 924 (alteration in original) (quoting In re A.W.T., 61
S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (per curiam)). “It is beyond question that
sexual abuse is conduct that endangers a child’s physical or emotional well-being.” In re A.B.,
7
125 S.W.3d 769, 775 (Tex. App.—Texarkana 2003, pet. denied) (citing In re R.G., 61 S.W.3d
661, 667 (Tex. App.—Waco 2001, no pet.), disapproved on other grounds by In re J.F.C., 96
S.W.3d at 267 n.39). Further, “[i]n our analysis under [statutory] ground E, we may also
consider a parent’s failure to complete relevant requirements of his service plan.” In re S.A.W.,
No. 06-21-00116-CV, 2022 WL 1193667, at *4 (Tex. App.—Texarkana Apr. 22, 2022, pet.
denied) (mem. op.) (citing In re Z.J., No. 02-19-00118-CV, 2019 WL 6205252, at *11 (Tex.
App.—Fort Worth Nov. 21, 2019, pet. denied) (mem. op.)).
B. Background
The evidence at trial showed that, after Father was accused of sexual abuse by his
nephew, the Department opened cases on F.S. and three of Father’s other children, C.B., J.B, and
B.B., in October 2022. During the Department’s investigation, the children were interviewed at
the Texarkana Children’s Advocacy Center (the CAC). The children disclosed that they were
having sex with each other under their trailer house.5 As a result, on January 2, 2023, the
Department had a family team meeting with Father and Bonnie, who agreed that they would
follow through with counseling for the children and all the recommendations of the Department
in order to address the children’s sexual behavior. However, Father and Bonnie did not pursue
counseling for the children until late February, and only after the Department contacted them.
When they did, they informed the counselor that it was for the trauma of seeing Father arrested,
and they did not mention any sexual behavior.
5
At the time, F.S. and B.B. were four years old, J.B. was six years old, and C.B. was seven years old.
8
Father and Bonnie were also required to put up cameras to be able to watch the children,
but they claimed the children kept turning them off. Charlotte Carpenter, whose daughter
babysat for Father and Bonnie, helped care for C.B., J.B., and B.B. for about six years. She
testified that Bonnie agreed to put up cameras and to lock doors to prevent the children’s contact
with each other but that, when Carpenter dropped the children off, the camera was dangling, and
the doors were not locked. C.B. told her that he unplugged the camera in his room, then slipped
out of his room and unplugged the other cameras. After the children would “do their business,”
he would plug the cameras back in. Carpenter testified that Father and Bonnie knew this
happened and were supposed to get wired cameras, but they never did. The girls told her that
Father and Bonnie removed the camera from the girls’ bedroom and put it in their own room, so
the children had sex in the girls’ bedroom.
Because Father and Bonnie were not protecting the children, the Department removed
them from the home in March 2023.6 F.S. was placed in the home of E.F., his half-sister, her
father, and her father’s wife. C.B., J.B., and B.B. were placed with Carpenter. Carpenter
testified that she was diligent in following the protocols that the children’s counselors had put in
place to address their sexual behavior. In July 2023,7 C.B., J.B., and B.B. told her that Father
had touched them inappropriately. C.B. told her that Father had caught him five times while
C.B. was dressing and that Father touched his “wienie” and put his hand around it. J.B. said that
Father had put his mouth to her chest, touched her “front butt with his hand” and “his wienie,”
6
F.S. began living with Father, Bonnie, and the other children in October 2022.
7
Father was arrested for the sexual abuse of the children.
9
and one time forced her hand to touch his “wienie.” B.B. said that Father pulled her shorts down
and ripped her panties and that they “did sex” on more than one occasion. Carpenter testified
that, after the children made the outcries, they became afraid and had escalated nightmares.
Although the children improved with counseling, they were terrified to see Father.
J.B. also made an outcry to Maureen Fletcher, a forensic interviewer at the CAC, in July
2023. Fletcher testified regarding the outcry, which revealed additional instances of sexual
abuse by Father. C.B. also told Fletcher that Father touched his “wienie” more than one time and
that Father told him that, if he told, “he would get in big, big, big, big trouble, the hurt you kind
of trouble.”
Cecilia Cade, a therapist at the CAC, began counseling C.B. in March 2023 for
problematic sexual behavior, which took about nine months, before instituting trauma-focused
therapy. She testified that C.B. was not regulated in his emotions and that, when he was asked
about visitation with his parents, he became dysregulated and had immediate issues at school and
in therapy.
Shane Roach, a therapist at the CAC, counseled both J.B. and B.B. He began counseling
the girls in April 2023. He testified that B.B. was initially very shy, fearful, and timid and that,
for several sessions, he did joint sessions with J.B. and B.B. to build rapport. It took two months
for the girls to become regulated enough to begin a therapy workbook. B.B. was assessed with a
CATS 28 on which a normal score is around seventeen. B.B scored a thirty, which is high. For a
while, B.B. wrote everything down and would not verbally communicate. On two occasions, she
8
Child and adolescent trauma screen 2.
10
drew a picture of a person she identified as Father, wrote “me being sexual abused” or “sexual
abuse me,” and drew an arrow. On the back of one, she wrote that she told her mom about the
sexual abuse. Roach opined that B.B. and J.B. were in trauma response, that is, fight, flight, or
freeze. He testified that, although B.B. had made progress, whenever someone mentioned Father
or Bonnie, both girls reverted to their old behaviors.
Regarding J.B., Roach testified that she was also assessed with a CATS 2 and also scored
a thirty. J.B. drew pictures regarding Father’s sexual abuse, and, on some, J.B. wrote that she
was a bad kid. Roach explained that J.B. blamed herself for the sexual abuse. J.B. also drew
pictures of Bonnie and herself and wrote “Mom, dad touched me wrong,” and Bonnie replied,
“Don’t tell.”
C. Analysis
In his brief, Father only argues that the evidence was insufficient to support the trial
court’s findings under statutory ground E because the children’s outcries of sexual abuse by
Father “were tainted by the actions of the fictive kin placement.” Father neither identifies what
the tainting actions were, nor does he cite, either in his argument or in his statement of facts, to
any place in the record that supports his conclusory claim. Our review of the record shows that,
in a brief exchange on cross-examination of a forensic interviewer at the CAC, the interviewer
agreed that the actions of an outcry witness might damage the reliability of the outcry, but she
also testified that the process used by the CAC ensured the reliability of what goes on in its
interviews.
11
In this case, C.B., J.B., and B.B. made their initial outcries to Carpenter, who separated
the children and talked with each individually to figure out what was wrong. She denied
“grilling” them at any time. There was no testimony regarding the questions she asked the
children or what actions she took that may have influenced their outcries. Because the trial
court, as fact-finder, “[wa]s the sole arbiter when assessing the credibility and demeanor of
witnesses” and had the “opportunity to observe witness testimony first-hand,” we defer to its
assessment of the reliability of Carpenter’s testimony and the outcries of the children. In re A.B.,
437 S.W.3d at 503. Further, C.B., J.B., and B.B. made outcries regarding Father’s sexual abuse
to their therapists at different times over the following nine months, and the treatment of the
trauma caused by that abuse became the focus of their therapy.
The majority of the evidence in this case focused on Father’s actions toward C.B., J.B.,
and B.B. while they were in his custody, and the evidence was sufficient to show that Father
engaged in a “voluntary, deliberate, and conscious course of conduct” that endangered the
children’s physical and emotional well-being. In re L.E.S., 471 S.W.3d at 923 (quoting Perez,
148 S.W.3d at 436); see also In re A.B., 125 S.W.3d at 775 (“It is beyond question that sexual
abuse is conduct that endangers a child’s physical or emotional well-being.”). Although F.S. was
in Father’s custody for about five months, the trial court could consider Father’s endangering
conduct while he had custody of F.S.’s siblings. See In re J.O.A., 283 S.W.3d at 345. Also, the
evidence showed that, in the short time that F.S. was in his custody, Father failed to protect him
from the known sexual behavior of his siblings.
12
Based on this record, the trial court could reasonably form a firm belief or conviction that
Father engaged in a course of conduct that endangered the physical and emotional well-being of
F.S. As a result, we find that factually and legally sufficient evidence supported the trial court’s
finding under statutory ground E.9 We overrule this issue.
III. The Challenge to the Trial Court’s Best-Interest Finding Was Waived
A. Best-Interest Requirements
“There is a strong presumption that keeping a child with a parent is in the child’s best
interest.” In re R.W., 627 S.W.3d 501, 516 (Tex. App.—Texarkana 2021, no pet.) (quoting In re
J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi–Edinburg
Feb. 28, 2013, pet. denied) (mem. op.)). “Termination ‘“can never be justified without the most
solid and substantial reasons.”’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana
2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
“In determining the best interests of the child,” courts consider the following Holley
factors:
(1) the desires of the child, (2) the emotional and physical needs of the child now
and in the future, (3) the emotional and physical danger to the child now and in
the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)); see In re E.N.C., 384
S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). These factors are
9
Because we have found that sufficient evidence supports the trial court’s finding under statutory ground E, we need
not address Father’s challenge to the finding under statutory ground D. See In re A.B., 2023 WL 7475743, at *2.
13
not exhaustive, and there is no requirement that all of them be proved to terminate parental
rights. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Further, we may consider evidence used to
support the grounds for termination of parental rights in the best-interest analysis. Id. at 28.
B. Analysis
Father also challenges the factual and legal sufficiency of the evidence supporting the
trial court’s finding that termination of his parental rights is in the best interest of F.S. In
Father’s argument in support of this contention, he states that, even if the evidence is sufficient to
support the findings under statutory grounds D or E, the Department must still show that
termination is in the child’s best interest, and he notes that proof of the grounds for termination
does not relieve the Department from establishing that termination is in the best interest of the
child. “However, [he] does not state the Holley factors, provide any substantive analysis of how
they apply in this case, or make appropriate citations to the record.” In re G.B., No. 06-20-
00031-CV, 2020 WL 4589761, at *1 n.3 (Tex. App.—Texarkana Aug. 11, 2020, no pet.) (mem.
op.) (citing In re D.V., No. 06-16-00065-CV, 2017 WL 1018606, at *7 (Tex. App.—Texarkana
Mar. 16, 2017, pets. denied) (mem. op.)). As a result, we find that Father failed to set out in his
brief a clear and concise argument in support of his challenge to the trial court’s best-interest
finding and that this issue has been waived.10 We overrule this issue.
10
Although Father waived this issue, we have reviewed the entire record and have determined that sufficient
evidence supports the trial court’s findings.
14
IV. Disposition
For the reasons stated, we affirm the trial court’s judgment terminating Father’s parental
rights to F.S.
Charles van Cleef
Justice
Date Submitted: September 9, 2024
Date Decided: October 9, 2024
15