In the Interest of G.M.S. and G.W.S.-S. v. the State of Texas ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00207-CV
________________
IN THE INTEREST OF G.M.S. AND G.W.S.-S.
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 19-02-02682-CV
________________________________________________________________________
MEMORANDUM OPINION
Father appeals the termination of his parental rights to his two children, Gina
and Greg. 1, 2 See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (2). In two
issues on appeal, Father challenges the predicate findings under section
161.001(b)(1), and argues the termination is not in the best interest of his children.
Id. We affirm.
1 Mother’s parental rights were not terminated.
2 In parental rights termination cases, to protect the identity of the minors, we
refer to the children and their family members by a pseudonym. See Tex. R. App. P.
9.8(b)(2).
1
Background
A. Procedural History
This case has a long procedural history with the Texas Department of Family
and Protective Services (“the Department”) and in private modifications between
Mother, Father and third parties. After Gina was born in 2017, the Department filed
an Original Petition for Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship.3 In its Affidavit of
Removal, the Department alleged neglectful supervision by Mother, illegal drug use
by both Mother and Father, domestic violence between Mother and Father, and
allegations of inappropriate sexual behavior and abuse by Father against the
children. The trial court granted the removal and awarded conservatorship of the
children to the Department. In 2019, by motion of the Department, Gina’s case was
severed from the original petition. The non-parent care-givers filed an intervention
seeking conservatorship. The parties, including non-parent intervenors, entered into
a mediated settlement agreement in January 2019. In February 2019, the trial court
signed a Final Order in Suit Affecting the Parent Child Relationship as to Gina, in
accordance with the mediated settlement agreement, naming the nonparent
3 This petition included Mother’s other child and Gina’s half sibling who is
not a part of this suit or appeal.
2
intervenors as joint managing conservators with the right to designate the primary
residence of Gina, and giving possessory rights to Mother and Father.
In March 2019, August 2019, September 2019, November 2019, January
2020, February 2020, June 2020, and August 2020 Father filed petitions to modify
the parent-child relationship, all of which were denied by the trial court, except for
the August 2020 motion. 4
In 2019, Mother gave birth to Greg and the parties entered a final order
naming both parties joint managing conservators, with Father as the parent with the
ability to designate Greg’s primary residence. In April 2021, the trial court granted
an Order to Modify the Parent-Child Relationship, naming both parties joint
managing conservators, with Father as the parent with the right to designate Gina’s
primary residence. Greg’s case was consolidated into Gina’s cause number.
In May 2022, the Department filed a Petition to Modify, for Conservatorship,
and for Termination in Suit Affecting the Parent-Child Relationship, the initial
pleading for the case before our Court today. In its affidavit for removal, the
Department alleged that in May 2022, Gina reported sexual abuse to a professional.
According to the affidavit, Gina stated her father “rubs her tutu a lot[,]” she has
exhibited increased behavioral problems at school, and she has displayed avoidance
behaviors when in the presence of Father, including “hiding and not wanting to go
4 Father filed these motions first with counsel and then pro se.
3
home.” Subsequently, the trial court ordered both children to be removed from
Father and placed with the Department, naming the Department as temporary
managing conservator of the children. In that same month, Mother answered the
Department’s motion and concurrently filed two motions to modify the parent child
relationship as to Greg and Gina, alleging Father engaged in a history or pattern of
family violence, child abuse and child neglect.
On June 15, 2022, the trial court signed agreed temporary orders regarding
Greg and Gina, naming Mother sole managing conservator with the right to
designate the children’s primary residence and giving Father possessory conservator
rights, but denying visitation with the children until a therapist recommends it. The
Department’s Petition for each child was dismissed, but in December 2022, the
Department filed a new Petition in Intervention and for Protection, to Modify, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship with respect to Greg and Gina, alleging Mother engaged in a physical
altercation with her paramour, including threating his life with a gun, physically
attacking her oldest child, neglectful supervision, and physical abuse and neglect of
all her children including Gina and Greg. 5 The trial court then signed an order
removing the children from Mother’s possession and naming the Department sole
managing conservator of the children. In May 2024, after extensive motion practice
5 Mother’s two oldest children are not a part of this appeal.
4
between the parties, a jury trial was held, and the jury found termination of Father’s
parental rights is in the best interest of the children.
B. The Trial
Genevieve Forey-Juarez
Genevieve Forey-Juarez testified she was Gina’s preschool teacher for the
2021-2022 school year. She described Gina as a “good student” noting that she was
“happy, well-behaved, [and] participated very well in class.” Towards the end of the
school year, Gina’s behavior changed. Forey-Juarez explained that Gina started
throwing tantrums in class, at lunch, and after school, being defiant, and not wanting
to leave at dismissal, something she had never done before. Forey-Juarez testified
regarding the following interaction with Gina on May 4, 2022:
A. We were in class doing -- I was with a group of students. [Gina] was
-- should have been in her pre-K center but she was just not wanting to
be there. She was coming up to me instead.
Q. So before you saw the behavior changes, was she -- would she have
always stayed in her section where she was supposed to be?
A. Yeah. She typically did, yes.
Q. So when these behaviors changed, you saw that change as well; is
that right?
A. Yes.
Q. Okay. And so what did -- what did [Gina] do while you were in
another section with some other students?
5
A. She told me that she didn’t like when her dad touched her tutu. And
that he always touched her tutu.
Q. All right. And did that concern you?
A. It did. I had never heard her say or anybody say anything like that
before.
Q. All right. And did she make any movements with her arms or legs
or any part of her body to tell you about that?
A. She gestured to her private area between her legs.
Q. All right. And when did she gesture that way? Was it -- at what part
of her telling you that?
A. When she said that she didn’t like when her dad touched her tutu.
Q. Okay. And what did you do after that happened?
A. I don’t know what I immediately did; but I know as soon as I could,
I went to go call the counselor and report it.
Forey-Juarez recalled that later that day Gina did not want to get on her school bus
to go home.
Victoria Lincoln
Victoria Lincoln testified that she was the assistant principal at Gina’s school
on the day she made the outcry to her teacher. Before Gina’s outcry, she described
her visits with Gina as “happy[,]” and “not for a discipline-type issue.” But noted
that Gina had “excessive [non] attendance[,]” agreeing that she missed 66 days that
school year. She explained that most of the absences were unexcused and that it was
unusual that Gina had so many doctors in Beaumont.
6
On May 4th, Gina’s teacher brought her to Lincoln’s office because Gina was
refusing to eat lunch. She said that while Gina was in her office, Lincoln observed
Gina “putting her hands on her private parts[.]” She asked Gina if she needed to go
to the bathroom and Gina said no. Gina then returned to her classroom. Later that
day at dismissal, Gina refused to get on the bus. According to Lincoln, Gina was
“crying, screaming[,] [and] [s]he threw herself on the ground…refusing to get up
and go to the bus at all.” She picked up Gina, held her, and took her to her office to
call her parent. She started to calm down once she was in Lincoln’s office. Father
then came to the school to pick up Gina. Lincoln testified that Gina’s demeanor
changed as soon as Father arrived at the school. She recalled that Gina was crying
and that “[s]he crawled…underneath the chair and [her father] had to pull her out
from underneath the chair.” After Father pulled Gina out from underneath the chair,
he took her down the hallway, and Gina was “crying and screaming…reaching her
hands over the hallway at me.” She testified that in all her years of teaching she had
never observed a child acting like this. Lincoln then spoke to the Department and a
police investigator about this issue.
Mandy Teal
Mandy Teal testified she has been an investigator with the Department for
almost eight years. Teal stated that on May 4, 2022, the Department was notified
about allegations of “[s]exual abuse of [Gina] by her father[.]” After learning of the
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allegations, she reviewed the parent’s history with the Department, the parent’s
criminal history, and filed for removal. Once the Department received the trial
court’s order to remove the children, the Department located the children and
removed them on May 9th. According to Teal, she did not interview Father regarding
the allegations.
Hilda Pernell
Hilda Pernell testified she is the Department supervisor on this case and has
been since the beginning. According to Pernell, there is currently an agreement with
the Department and Mother that the Foster Parents will have permanent managing
conservatorship of the children and Mother will have possessory rights, including
supervised visitations. The Foster Parents are Mother’s former in-laws and the
children have been with the Foster Parents since September 2023. She testified both
children are having their needs met by the Foster Parents’ care, and the Department
would have no concerns if Foster Parents were named conservators. According to
Pernell, because of the allegations against Father, regardless of what services Father
may complete, the Department would not feel it would be safe to return the children
to Father. Based on the allegations and comments from Gina, Pernell believed it
would be in the best interest of the children to terminate Father’s parental rights.
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Javier Vencigonzalez
Javier Vencigonzalez testified he has been the Department conservatorship
caseworker on this case since April, 2024. He testified he is familiar with the current
placement of the children, it is an appropriate home, and the Department has no
concerns with the placement. Gina and Greg’s half-brother is also in the home.
According to Vencigonzalez, both children have special needs and are receiving
appropriate therapies, medications, and care to address their needs. Vencigonzalez
testified the Foster Parents have had financial difficulties in the past, but those issues
are resolved, and he believes it is the best place for the children. According to
Vencigonzalez, the Department would have concerns if Father’s rights were not
terminated, explaining “especially [Gina] and to a certain extent [Greg], the trauma
that they’re undergoing might even get worse and there’s a safety concern as well.”
He testified he believes Father’s parental rights should be terminated.
Mary Phillips
Mary Phillips testified she is currently employed as a victim assistance
coordinator with the Montgomery County District Attorney’s Office. Before that,
she was a forensic interviewer at Children’s Safe Harbor with the Montgomery
County Child Advocacy Center located in Conroe. She described her training and
experience, explaining that she interviewed Gina two times, with the first interview
conducted on May 10, 2022. After the first interview, she noted Gina went to the
9
bathroom on herself and needed a change of clothes. She described Gina’s demeanor
during the second interview as a tentative disclosure, explaining that children “could
be tentative, there could be different barriers to a disclosure and different things
going on.”
Ashley Gonzalez
Ashely Gonzalez testified she is currently a forensic interviewer with
Children’s Safe Harbor. She detailed her educational and professional background,
including her training to become a forensic interviewer. She testified she interviewed
Gina in February 2023, and she has concerns that Gina was sexually abused because
she made an outcry during the interview. A copy of the forensic interview was
admitted into evidence and published to the jury.
Linda Fiato
Linda Fiato testified she is a Court-Appointed Special Advocate for Gina and
Greg. She explained she contacts the children monthly either at their placement or
at school. She has access to their educational and medical records and interacts with
guardians and providers to “check on their welfare and status.” Fiato testified she
provides monthly progress reports to the Department indicating how the parties are
doing and whether any concerns have come to light. She interacts with the parents
either in person or via phone or text, “to help them in any way that I can to
accomplish their goals and objectives in the case plan.”
10
Fiato testified she has been Gina and Greg’s guardian ad litem since March
2023. According to Fiato, Gina is “doing well in her placement[,]” and her needs are
being met, but Fiato also noted some behaviors related to trauma, in her opinion. She
stated Greg is “thriving[,]” and he is making progress behaviorally, including
becoming more verbal, interacting and socializing.
Fiato testified she believes it is in Gina’s best interest for Father’s parental
rights to be terminated because she believes Father will abuse Gina and “that he
presents an ongoing safety threat[.]” She also believes Father’s rights should be
terminated with respect to Greg because he has limited verbal skills and “is at risk
for abuse from Father and unable to speak up on his own behalf about anything that
might happen.” After searching Father’s familial contacts including his mother, ex-
wife and her child, Fiato expressed concerns Father has a “history of molesting” and
would sexually abuse his children. During cross-examination, Fiato agreed that some
allegations against Father were administratively closed but also agreed from a CASA
standpoint that no matter what services or programs Father completed, it would not
change her mind that he should not have the children returned to his possession.
John Tones
John Tones testified he is a detective with the City of Conroe, Criminal
Investigations Division. He described his educational and professional background
and testified he was assigned to investigate this case after Gina’s outcry that Father
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touched her “tutu[.]” Detective Tones testified the investigation against Father was
opened and closed two times before the current investigation, and criminal charges
were filed against Father. The first investigation was closed because there was not
an outcry statement made during the forensic interview. According to Tones, one of
Gina’s siblings later made an outcry during a forensic interview, leading to the
current charges filed against Father. Father was then charged with Aggravated
Sexual Assault of a Child, a first-degree felony.
Father
At trial, Father testified he is currently incarcerated in the Montgomery
County Jail awaiting trial on the sexual abuse allegations against Gina. He detailed
the procedural history of this case and stated he was named managing conservator
of the children with the right to designate their primary residence in 2021. Copies of
Gina’s school records were admitted at trial, showing Gina was absent from school
several times when she lived with Father. Father explained the absences as being for
“COVID-related symptoms.” The records show Gina would go to the doctor in
Beaumont when she was sick, not locally in Conroe, and Father explained he chose
Beaumont because it was closer to Mother. “[Mother] was living in Tarkington,
which was about an hour from Beaumont because that was my plans to move out
there to be on the other side of Mother.” Father testified he tried to get into a doctor
locally after her other pediatrician stopped seeing patients, but he did not “know how
12
to work the computer system.” Father denied taking the children to doctor’s
appointments in Beaumont to receive gas mileage reimbursement from Medicare or
Medicaid.
On May 4, 2022, Father received a phone call from Gina’s school that Gina
did not want to take the school bus home. When Father got to the school, Gina was
in the school office and he said she was “fussy, like trying to sit down, like she did
not want to come up to me and I did not know what the purpose of that was at the
time.” He testified Gina kept her head down the entire time and did not want to talk
to him. Father said that was the first time he had ever seen Gina act like that. On
May 9th, the Department removed Gina and Greg from Father’s care. Father testified
he had not had any contact with Gina or Greg for over two years. Father admitted he
was molested as a child. Father denied Gina has ever seen his private parts. He
denied ever bathing with his children or asking them to keep a secret. Father invoked
his fifth amendment right regarding any questions about the sexual abuse allegations
against Gina.
Mother
Mother testified she has four children, including Gina and Greg. Three of her
children currently live with their Foster Mother. Mother detailed her mental health
history and confirmed Gina and Greg were removed from her care in December 2022
after she was arrested following a fight with her boyfriend. Mother then described
13
her relationship with Father, testifying that in 2017 right before Gina was first
removed from her care as a toddler, she had concerns Father was using cocaine.
Mother described her relationship with Father as “[v]ery rocky, very chaotic[,]”
noting that Father lied to her about his employment on “day one[,]” testifying “I feel
like our whole relationship was based off of one lie from day one.” Mother stated
there was “a lot” of physical abuse, including times that the police were called. She
recalled two instances of domestic violence from Father early in their relationship.
According to Mother, if she denied Father sexual intercourse, he would “freeze me
out of…his apartment[,]” or turn down the thermostat to make her uncomfortable,
and she described his actions as “a game he liked to play.” Mother recalled one time
when she wanted to sleep on the couch to be more comfortable and Father smeared
feces on her face. She would also wake up to Father standing over her and
masturbating. Eventually she moved to a different unit in the same apartment
complex and found out she was pregnant with Gina, but admitted she continued to
have a relationship with Father and subsequently conceived Greg.
Mother testified that Father’s rights as to Gina should be terminated because
“I believe my daughter. I have dealt with a lot of trauma and very long healing
process that we’re still in. I don’t think that he’s a safe dad.” She also expressed
concern about Father’s parental rights with respect to Greg, explaining “[Greg] has
a speech impairment, which cause -- makes it really, really hard to understand
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anything that he says. You just have to really pay attention and spend a lot of time
with him to be able to understand it. I even have a hard time with it. So if there was
any sexual abuse at all, he wouldn’t be able to speak up for himself.” Mother spoke
about Father’s childhood, testifying that “he went to a boys’ group home for, I guess,
being inappropriate with other children either his age or a little bit younger than him,
around age 13[,]” and that she had concerns that Father sexually assaulted another
child when he was a child. Mother stated that Father did not have a good relationship
with his own mother and that he was molested when he was a teenager. Mother stated
she reported Father to the Department when Gina was a baby because of his behavior
towards her when he would change her diapers.
It was like in an hour-long setting, he would change her diaper five
times in one hour. That was very consistent. Anytime he would come
to visit, that’s all he would want to do is just take her diaper off and
every time the line would change colors on her pamper. And it always
made me feel like he was looking at my baby inappropriately, and that’s
what I reported in 2017 in that CPS case when I called.
According to Mother, Gina had many absences from school while in Father’s care,
but she denied being aware of the absences because she had visitation with the
children only on weekends. Mother testified Father took the children to doctors in
Beaumont so he could get “gas mileage reimbursement.” She claimed Father used
this time when he was close to the Texas/Louisiana state line to “go back and forth
to the casino.” Mother testified that when Gina was removed from Father, he made
a missing poster for her stating Gina was kidnapped. She admitted during cross-
15
examination that in 2021, she agreed for Father to be named Joint Managing
Conservator and to have a standard possession order. She described the Foster
Parents’ care of Gina and Greg as “beyond measure.”
Foster Mother
Foster Mother testified that her son was married to Mother before he passed
away, and that she has kept in contact with Mother. The children were placed with
her in October 2023. As of the time of trial, the children had lived with her for several
months. She testified her household has seven people, herself, her husband, her 24-
year-old daughter, her granddaughter, Gina, Greg, and Gina’s and Greg’s older
sibling. Gina and her granddaughter share a room, and Greg and his older half-
brother share a room.
According to Foster Mother, Greg is in a Pre-K early education program. She
testified Greg has special needs and is autistic, but he is receiving speech and
occupational therapy and is “doing better.” Foster Mother testified Gina has an
intellectual disability, oppositional defiance disorder, attends therapy, and takes
medication to help with her issues. She described Gina’s sleep issues, stating “it’s
hard for her to fall asleep at night. We’re not really sure why, just that she has to
take a medication to help her fall asleep. Sometimes she gets up in the middle of the
night and wanders around, but she goes back to bed.” As for her oppositional
defiance disorder, Gina “doesn’t do what she’s asked to do, and she knows she’s not
16
supposed to do it[,] [b]ut her impulses tell her that she’s…can do it.” Foster Mother
testified that she had observed Gina touching herself, and that she did it in front of
other people, but the instances have stopped in recent months. Gina did have some
toilet issues when she arrived but they have since been resolved. Foster Mother
testified Gina does not like to be hugged or touched and has “boundary issue[s].”
Foster Mother testified that although she does not work outside the home and
her husband does not work, they do not have any financial issues. Her income is
currently from the children’s disability checks and from her job at home, which is
taking care of her mother. She testified she loves the children and is bonded to them.
Her wish is for the children to remain in her home.
Forensic Interview Videos
At trial, three videos of Gina’s forensic interviews at Children’s Safe Harbor
were admitted and played for the jury. In an interview dated February 13, 2023, Gina
identified herself and her birthday. She identified the difference between a truth and
a lie. Gina stated Father “touched her private at his house[.]” She identified her
private as where she goes to the bathroom. She told the forensic interviewer Father
used his hand to touch her private and gestured towards her vaginal area. In a second
video recorded on the same day, Gina said Father touched the inside of her private
part with his hand while she was taking a bath.
17
C. Jury Findings, Trial Court’s Order, and Father’s Appeal
At the conclusion of the evidence, the trial court submitted four questions to
the jury, an affirmative answer to each of which required clear and convincing
evidence. Question one asked the jury whether Father had knowingly placed each
child or allowed each child to remain in conditions or surroundings which
endangered their physical or emotional well-being. Question two asked the jury
whether Father had engaged in conduct or knowingly placed each child with persons
who engaged in conduct which endangered their physical or emotional well-being.
Question three asked the jury whether Father had constructively abandoned the
children. Lastly, question four asked the jury whether termination of Father’s
relationship with each of the children is in the best interest of each child. A
unanimous jury answered each of the four questions “Yes.”
Based on the jury’s findings, the trial court signed an order terminating
Father’s parent-child relationship with Gina and Gregg. Father timely filed this
appeal. In his first issue, Father challenges the legal and factual sufficiency for each
of the jury’s first three findings regarding endangerment and abandonment. In his
second issue, Father challenges the legal and factual sufficiency for the jury’s fourth
finding regarding the best interest of the children.
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Standard of Review
It is well established that in order to terminate a parent-child relationship, the
Department must prove by clear and convincing evidence that the parent engaged in
one or more of the acts or omissions set forth in Texas Family Code subsection
161.001(b)(1). See Tex. Fam. Code Ann. § 161.001(b); In the Interest of E.N.C., 384
S.W.3d 796, 802 (Tex. 2012) (citing In the Interest of J.F.C., 96 S.W.3d 256, 263
(Tex. 2002)); see also In the Interest of N.G., 577 S.W.3d 230, 235 (Tex. 2019)
(citations omitted). “Due process compels this heightened standard because
terminating the parent-child relationship imposes permanent, irrevocable
consequences.” In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citations
omitted). The Texas Family Code defines “clear and convincing evidence” as “the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Tex.
Fam. Code Ann. § 101.007. Because due process also entitles a parent to a
meaningful appeal, we apply a heightened standard of review in a parental-rights
termination case. See In the Interest of N.G., 577 S.W.3d at 235. The Texas Supreme
Court has instructed:
In a legal sufficiency review, a court should look at all the evidence in
the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction
that its finding was true. To give appropriate deference to the
factfinder’s conclusions and the role of a court conducting a legal
sufficiency review, looking at the evidence in the light most favorable
19
to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that a
court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could
skew the analysis of whether there is clear and convincing evidence.
In the Interest of J.F.C., 96 S.W.3d at 266 (emphasis in original); see also In the
Interest of E.N.C., 384 S.W.3d at 802. The evidence is legally insufficient if no
reasonable factfinder could have formed a firm belief or conviction of the truth of
the matter the Department sought to prove. In the Interest of J.F.C., 96 S.W.3d at
266.
If the evidence is legally sufficient, the appellate court then reviews the factual
sufficiency of the evidence. Id. In a factual sufficiency review, we “must give due
consideration to evidence that the factfinder could reasonably have found to be clear
and convincing.” Id. We are required to determine “whether the evidence is such
that a factfinder could reasonably form a firm belief or conviction about the truth of
the [Department’s] allegations.” In the Interest of C.H., 89 S.W.3d 17, 25 (Tex.
2002). “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” In the Interest of J.F.C., 96 S.W.3d at 266. We
must not substitute our judgment for that of the jury; rather, because the jury is the
20
sole judge of the credibility of the witnesses and the weight to be given to their
testimony, we must give deference to the jury’s findings. In the Interest of H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006); In the Interest of J.L., 163 S.W.3d 79, 86-87 (Tex.
2005).
Analysis
1. Endangerment Findings
When, as in this case, the trial court’s termination order is based on an
affirmative finding that termination is in the child’s best interest combined with
affirmative findings of multiple predicates under section 161.001(b)(1), we may
affirm if a single predicate finding is supported by sufficient evidence. See In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003) (applying previous version of the statute). In
addition to challenging the sufficiency of the jury’s finding that termination is in the
children’s best interest, Father challenges the sufficiency of each of the predicate
findings under subsections 161.001(b)(1)(D), (E) and (N). Because “the collateral
consequences of terminating parental rights under section 161.001(b)(1)(D) or (E)
are significant[,]” we first consider whether the evidence is sufficient to support
those findings before considering the sufficiency of the other findings. In the Interest
of N.G., 577 S.W.3d at 234. If the evidence is sufficient to support one of these
grounds, it is not necessary to address the sufficiency of the jury’s constructive
abandonment finding based on subsection 161.001(b)(1)(N). See id. at 232-33.
21
“Because evidence of grounds D and E is often interrelated, we may consolidate our
review of the evidence supporting these grounds.” In the Interest of E.M., No. 09-
21-00317-CV, 2022 Tex. App. LEXIS 2245, at *16 (Tex. App.—Beaumont Apr. 7,
2022, no pet.) (mem. op.).
Subsection D allows a court to terminate a parent’s rights when the factfinder
finds by clear and convincing evidence that the parent “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §
161.001(b)(1)(D). Under subsection E, a parent’s rights may be terminated if clear
and convincing evidence establishes 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[.]” Id. § 161.001(b)(1)(E). The statute does not
define “endanger” but the Texas Supreme Court has explained that “‘endanger’
means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citation omitted). To endanger a child, “it
is not necessary that the conduct be directed at the child or that the child actually
suffers injury.” Id.“Subsection D requires the endangerment to the child to be a direct result of
the child’s environment.” See In the Interest of J.H., No. 09-20-00056-CV, 2020
Tex. App. LEXIS 6189, at *34 (Tex. App.—Beaumont Aug. 6, 2020, no pet.) (mem.
22
op.) (citation omitted). “Endangerment under subsection (D) arises from a child’s
environment and a parent’s disregard for the potential for danger created by the
environment.” In re I.V.H., No. 01-19-00281-CV, 2019 Tex. App. LEXIS 8659, at
*14 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, pet. denied) (mem. op.)
(citation omitted). Termination under subsection D may be based on a single act or
omission. In the Interest of A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,
pet. denied). Termination under subsection E “requires more than a single act and
must show a conscious course of conduct.” In the Interest of C.M.C., 554 S.W.3d
164, 172 (Tex. Crim. App. 2018). When examining endangerment under subsection
D, we consider the child’s environment before the Department obtained custody. See
In the Interest of J.L.V., 2020 Tex. App. LEXIS 2070, at *34. When examining
endangerment under subsection E, we may consider actions before and after a child’s
birth to establish a “course of conduct.” In the Interest of C.M.C., 554 S.W.3d at
172.
“Sexual abuse is conduct that endangers a child’s physical or emotional well-
being.” In re K.A.R., No. 04-17-00723-CV, 2018 Tex. App. LEXIS 2548, at *9 (Tex.
App.—San Antonio Apr. 11, 2018, pet. denied) (mem. op.). It is not necessary for
the Department to establish sexual assault, nor that the parent was criminally charged
or convicted. In the Interest of B.S.C.F., No. 01-18-00907-CV, 2019 Tex. App.
LEXIS 2128, at *18 (Tex. App.—Houston [1st Dist.] Mar. 19, 2019, pet. denied)
23
(mem. op.). Additionally, evidence of sexual abuse of other children, is relevant in
determining endangerment grounds. In re K.A.R., 2018 Tex. App. LEXIS 2548, at
*9; see also In the Interest of L.J.H., No. 05-21-00183-CV, 2021 Tex. App. LEXIS
7719, at *34 (Tex. App.—Dallas Sept. 20, 2021, no pet.) (mem. op.) “([P]redatory
or harmful conduct directed at one child will support termination of parental rights
as to a different child, because all children at risk for the same conduct by the same
predator are endangered.”).
The Department presented evidence that Gina made a sexual abuse outcry at
school and again in a forensic interview that Father “always touched her ‘tutu,’” that
she gestured to the area between her legs while saying “tutu,” and that she did not
like it when he touched her “tutu.” Father testified Mother told him that “tutu” is
how she referred to Gina’s private area. Gina’s teacher described changes in Gina’s
behavior towards the end of the school year leading up to the outcry statement on
May 4, 2022. The jury heard testimony from the vice principal of Gina’s school that
Gina showed a fear of Father after her outcry and resisted going home with him,
screaming as he carried her out of the school. Father testified he was incarcerated at
the time of trial awaiting a criminal trial for aggravated sexual assault of Gina based
on allegations he caused his hand to penetrate Gina’s sexual organ. When questioned
about these allegations, he invoked the 5th Amendment, and the trial court instructed
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the jury that although it was not required to do so, it was permitted to infer that
Father’s answers would have been adverse to Father.
The jury heard the caseworker testify that the Department terminated Father’s
visitation based on safety concerns “[b]ecause of the outcries.” The jury also heard
the caseworker’s supervisor testify that although Father had completed many
services on the family service plan, in her opinion, there were no services he could
complete that would make the Department feel safe in returning the children to him.
A forensic interviewer with Children’s Safe Harbor told the jury she followed all the
protocols for conducting forensic interviews and Gina made an outcry during her
interview. The jury then watched a recording of the interview, during which Gina
gestured towards her vaginal area and told the forensic interviewer Father touched
the inside of her private part with his hand while she was taking a bath. Foster Mother
testified Gina displayed sexually inappropriate behavior when she entered her home.
Mother and the guardian ad litem both expressed concerns about Greg’s returning to
Father because he is nonverbal and cannot speak up to protect himself or report
inappropriate behavior.
Viewing the evidence in the light most favorable to the jury’s findings, it
cannot be said that no reasonable factfinder could have formed a firm belief or
conviction of the truth of the matters the Department sought to prove. See In the
Interest of J.F.C., 96 S.W.3d at 266. Gina’s outcry statement alone is sufficient to
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support the jury’s findings. See In the Interest of M.H., No. 05-22-00017-CV, 2022
Tex. App. LEXIS 5631, at *16 (Tex. App.—Dallas Aug. 5, 2022, no pet.) (mem.
op.) (citation omitted) (“[O]utcry testimony alone is sufficient to support conviction
beyond a reasonable doubt. Accordingly, the trial court could have formed a firm
belief or conviction that Father knowingly allowed [the children] to remain in
conditions that endangered their physical or emotional well-being and that he
engaged in a course of conduct that endangered them.”); In the Interest of S.M.T.,
No. 13-17-00064-CV, 2017 Tex. App LEXIS 6795, at *8 (Tex. App.—Corpus
Christi July 20, 2017, pet. denied) (a jury is entitled to believe the child’s outcry of
sexual abuse as told by a witness from the Department and her counselors and
disbelieve Father’s controverting evidence). “[I]t is beyond questionable that sexual
abuse is conduct that endangers a child’s physical or emotional well-being.” In the
Interest of R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied)
(citation omitted). Additionally, “if a parent abuses a child, that conduct can support
an endangerment finding as to another child.” In the Interest of D.R., No. 02-23-
00093-CV, 2023 Tex. App. LEXIS 7223, at *40 (Tex. App.—Fort Worth Sept. 14,
2023, pet. denied) (mem. op.)
The evidence is, therefore, legally sufficient to enable the jury to find Father
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered their physical or emotional well-being. See Tex.
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Fam. Code Ann. § 161.001(b)(1)(D). The evidence is also legally sufficient to enable
the jury to find Father engaged in a voluntary, deliberate, and conscious course of
conduct endangering the physical or emotional well-being of the children. See id. §
161.001(b)(1)(E).
Father argues, “The testimony about [Father] sexually abusing one of his
children came almost exclusively from the Safe Harbor videos.” Father asserts the
timing of outcry statements always came just before court dates. Father also lists
several other grounds upon which a factfinder could question the credibility or
reliability of the outcry statements, including but not limited to:
[T]he child never acknowledged the difference between a truth and a
lie, stated that people were wearing invisible jewelry, stated the door
opened by itself when the video clearly shows she opened it. The
interviewer constantly led the child by giving her options. The child
refused to answer continuously asking for the interviewer to play with
her. The child finally start[s] answering only after the interviewer
promised to play with her. The child always takes the last option over
and over in order to get the interviewer to play with her. Even when the
child does answer, the sexual assault that she describes in not credible
as it would not be physically possible. G.S. stated in his interview he
heard his mom talking about it and his mom told him things. The same
mom who was not forthcoming about the assault she perpetrated that
led to the last removal.
Father also emphasizes the Department dismissed its case in May 2022 when
law enforcement closed its case, administratively closed its December 2022 cases,
and was uncertain of the grounds upon which the Department sought to terminate
Father’s rights. Father argues that in light of his challenges to the credibility of the
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Department’s evidence, “no one could find the statements made by the child to be
clear and convincing.” We disagree. The Texas Supreme Court has explained:
“[A] core function of the jury under any standard of proof—including
clear and convincing evidence—is to resolve conflicts in testimony,
weigh evidence, and draw reasonable inferences from basic facts to
ultimate facts. In doing so, juries may consider circumstantial evidence,
weigh witness credibility, and draw reasonable inferences from the
evidence they choose to believe. A reviewing court may not substitute
its judgment for that of the jury.”
In the Interest of C.E., 687 S.W.3d 304, 308-09 (Tex. 2024) (citations omitted). As
a reviewing court, we are required to determine whether the evidence is sufficient to
enable a factfinder reasonably to form a firm belief or conviction concerning the
truth of the Department’s allegations. See In the Interest of C.H., 89 S.W.3d at 25.
“But the court of appeals’ authority to conduct a factual sufficiency analysis does
not permit the court to stand in the role of a thirteenth juror.” In the Interest of A.B.,
437 S.W.3d 498, 507 (Tex. 2014). Rather, our responsibility is to consider the entire
record and determine whether the disputed evidence the jury could not reasonably
have credited in favor of its endangerment findings is so significant that the jury
could not reasonably have formed a firm belief or conviction that Father endangered
the children as described in subsections 161.001(b)(1)(D) and (E). See In the Interest
of J.F.C., 96 S.W.3d at 266. Having reviewed the entire record under this standard,
we conclude the evidence is factually sufficient to support the jury’s findings with
respect to subsections (D) and (E).
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We need not address the sufficiency of the evidence to support the jury’s
findings with respect to subsection (N) regarding constructive abandonment. See In
the Interest of J.S., No. 09-20-00294-CV, 2021 Tex. App. LEXIS 4574, at *30 (Tex.
App.—Beaumont June 10, 2021, no pet.) (mem. op.) (noting if there are multiple
predicate grounds, we will affirm based on any one ground as only one is necessary
to terminate parental rights); see also Tex. R. App. P. 47.1 (requiring appellate court
to issue a written opinion as brief as practicable that addresses all issues necessary
to the appeal’s disposition). We overrule Father’s first issue.
2. Best-Interest Finding
In response to question four, the jury unanimously found by clear and
convincing evidence that termination of Father’s relationship with each of the
children is in the best interest of each child. The Court’s Charge included a non-
exclusive list of twenty-two factors the jury was to consider in determining the best
interest of the children. These included each of the factors listed in Texas Family
Code section 263.307(b) as well as each of the following factors listed by the Texas
Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976):
(A) the desires of the child; (B) the emotional and physical needs of the
child now and in the future; (C) the emotional and physical danger to
the child now and in the future; (D) the parental abilities of the
individuals seeking custody; (E) the programs available to assist these
individuals to promote the best interest of the child; (F) the plans for
the child by these individuals or by the agency seeking custody; (G) the
stability of the home or proposed placement; (H) the acts or omissions
of the parent which may indicate that the existing parent-child
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relationship is not a proper one; and (I) any excuse for the acts or
omissions of the parent.
“No particular Holley factor is controlling, and evidence of one factor may be
sufficient to support a finding that termination is in a child’s best interest.” In the
Int. of K.D.R., No. 09-24-00089-CV, 2024 Tex. App. LEXIS 5882, at *19 (Tex.
App.—Beaumont Aug. 15, 2024, no pet. h.) (mem. op.). A determination of the
children’s best interest may be based on subjective factors or the totality of the
evidence. In the Interest of J.S., 2021 Tex. App. LEXIS 4574, at *32. Moreover, the
same evidence that is used to establish one of the predicates under subsection
161.001(b)(1) may also be used to establish termination is in the children’s best
interest. In the Interest of A.C., 560 S.W.3d 624, 631-32 (Tex. 2018).
As detailed above, the jury heard evidence that Father allegedly sexually
assaulted Gina and at the time of trial was awaiting his criminal trial for aggravated
sexual assault of a child. Considering this testimony, the jury reasonably could have
concluded Father would continue to engage in conduct that would not provide the
children with a safe and stable home. Additionally, the jury heard evidence both
children have special needs, are receiving therapy and taking medication and are
doing well in their foster placement. The jury also heard testimony the foster family
would be appropriate caregivers and could provide the children with a safe
environment. Foster Parents also wanted the children to remain in their care, and
there was testimony the children were happy in the Foster Family and did not express
30
wishes to see Father. Finally, the jury heard testimony from the Department’s
supervisor and from the guardian ad litem that they believed termination of Father’s
parental rights would be in the children’s best interest.
Considering the totality of the evidence in the light most favorable to the
jury’s finding, we conclude a jury reasonably may have formed a firm belief or
conviction that termination of Father’s rights was in the children’s best interest. See
Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a), (b); Holley, 544 S.W.2d at 371-
72. Therefore, the evidence is legally sufficient to support the jury’s best-interest
finding.
Father argues Foster Parents were having financial and housing issues, that
eighty percent of their income comes from the children’s disability checks, and that
one of the children was on a waiting list for therapy at the time of trial.
Acknowledging it was the jury’s responsibility to determine the credibility of the
witnesses, resolve conflicts in the testimony and weigh all the evidence in light of
the statutory and Holley factors, we cannot say the disputed evidence the jury could
not reasonably have credited in favor of its best-interest finding is so significant that
the jury could not reasonably have formed a firm belief or conviction that
termination of Father’s rights is in the children’s best interest. See In the Interest of
J.F.C., 96 S.W.3d at 266. Therefore, we conclude the evidence is also factually
31
sufficient to support the jury’s finding that termination of Father’s parental rights is
in the children’s best interest. We overrule Father’s second issue.
Conclusion
Having overruled both of Father’s issues, we affirm the trial court’s order
terminating Father’s rights.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on October 7, 2024
Opinion Delivered October 31, 2024
Before Golemon, C.J., Wright and Chambers, JJ.
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