S.H.R. v. Department of Family and Protective Services

Opinion issued April 20, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00999-CV

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S.H.R., Appellant

V.

Department of Family and Protective Services, Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 200903028J

DISSENTING OPINION

The Court holds that the evidence was factually insufficient to support termination of S.H.R.’s rights to his three children, S.M.R., G.J.R. and C.N.R., under Texas Family Code sections 161.001(1)(D) and 161.001(1)(E). The evidence does not demonstrate that S.H.R. sexually abused any of the children. But I believe the other evidence—specifically the evidence of domestic abuse, imprisonment, substance abuse, and neglect—is legally and factually sufficient to support termination of S.H.R.’s parental rights. I also conclude that the evidence is legally and factually sufficient to support the trial court’s finding that termination of his parental rights was in the children’s best interest. I therefore respectfully dissent.

Grounds for Termination of S.H.R.’s Rights

The trial court determined that S.H.R. (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endanger their physical or emotional wellbeing; and (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers their physical or emotional well-being. Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West 2011).[1]

A.      Endangerment by environment or conduct

Section 161.001(1)(D) provides that a “court may order termination of the parent-child relationship if the court finds by clear and convincing evidence . . . that 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[.]” Id. § 161.001(1)(D). Section 161.001(1)(E) requires the trial court to find by clear and convincing evidence that the parent has “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(1)(E). “To endanger means to expose a child to loss or injury or to jeopardize a child’s emotional or physical health.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (internal quotation omitted).

A child is endangered under subsection (D) when the environment creates a potential for danger that the parent is aware of but disregards. Id. at 721; In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). Abusive or violent conduct by a parent, as well as illegal drug use and drug-related criminal activity, supports a conclusion that the children’s surroundings endanger their physical or emotional well-being. In re M.T.W., No. 01-11-00162-CV, 2011 WL 6938542, at *12 (Tex. App.—Houston [1st Dist.] (Dec. 29, 2011) (mem. op.) (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)).

Under subsection (E), the relevant inquiry is whether evidence exists that a parental course of conduct endangered the child’s physical or emotional well-being. In re R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied). Subsection 161.001(1)(E) asks whether “the endangerment of the child’s physical well-being was the direct result of the parent’s conduct, including acts, omissions, or failures to act.” In re M.T.W., 2011 WL 6938542, at *12 (quoting In re J.T.G., 121 S.W.3d at 125). Termination under subsection (E) must be based on more than a single act or omission—the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the parent. Jordan, 325 S.W.3d at 723; see also In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.); see also In re M.T.W., 2011 WL 6938542, at *12. As a general rule, conduct that subjects children to a life of uncertainty and instability endangers their physical and emotional well-being. In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); In re H.N.H., No. 02-11-00141-CV, 2012 WL 117861 (Tex. App.—Fort Worth Jan. 12, 2012) (mem. op.); In re M.T.W., 2011 WL 6938542, at *12.

Because the evidence concerning these two statutory grounds for termination is interrelated, an appellate court may consolidate its examination of the evidence for both grounds. See In re M.T.W., 2011 WL 6938542, at *13; see also In re J.T.G., 121 S.W.3d at 126.

1. Sexual abuse evidence

I agree with the Court that the evidence is factually insufficient to support DFPS’s contention that the children were sexually abused. The vast majority of the evidence at trial addressed DFPS’s contention that S.H.R. sexually abused and sexually transmitted herpes to the children (and failed to follow the family service plan, a finding that the trial court did not make). Because DFPS’s case centers on allegations of herpes and sexual abuse, I begin my review of the sufficiency of the evidence there.

a.       Herpes evidence

DFPS’s summarized the thrust of its position in the opening sentence of the summary of the argument in its brief: “This is a case about three very young little girls who all tested positive for a sexually transmitted disease indicating they were all exposed to sexual abuse.” Because their father, S.H.R., “also tested positive for the same sexually transmitted disease,” DFPS concludes that the evidence was sufficient to demonstrate that S.H.R. sexually abused them. If S.H.R. had sexually-transmitted herpes to them, this would be an easy case. But the evidence was legally insufficient to demonstrate that the children tested positive for the same type of herpes that S.H.R. had or that they contracted it through sexual contact.

                    (i)       Medical records

The medical records in evidence[2] reveal that the two oldest daughters, S.M.R. and G.J.R., have type one (oral) HSV (herpes). In late June 2009, they tested positive for “HSV 1/2 (non-type specific) IGG and IGM,” triggering the DFPS investigation. The medical records stated that the tests were positive for “HSV 1 or 2” and ordered testing for type-specific confirmation in four weeks. S.M.R. and G.J.R. were tested in August 2009. The results were positive for type one (oral) herpes but negative for type two (genital) herpes.[3] That same month, the youngest daughter, C.N.R., tested negative for type two (genital) herpes. The gynecological “impressions” in both S.M.R.’s and G.J.R.’s June 15, 2010 medical reports state: “HSV type 1 positive (oral type) [and] HSV 2 negative (gen[it]al type).”

In sum, the medical records in evidence do not reflect any lab results in which any of the children tested positive for genital herpes. Although S.M.R. and G.J.R. tested positive for oral herpes, all of the medical records in evidence reflect negative test results for genital herpes. Additionally, with respect to the youngest child, C.N.R., the medical records reflect that she was only tested for genital herpes, not oral herpes, and that test came back negative.[4]

                    (ii)      Testimonial evidence

Despite the medical records, several witness testified that the children had tested positive for both type one (oral) and type two (genital) herpes. This testimony appears to be based largely on a misunderstanding of the June test results showing that two of the children tested positive for “HSV 1/2 (non-type specific),” which is elsewhere clarified as indicating “HSV 1 or 2.” Carly McGrew, a DFPS caseworker supervisor who was offered for her expertise on the issue of permanency, testified that all three children had been diagnosed with “[h]erpes one and two.” But McGrew later testified that she was not sure if any herpes tests were conducted prior to the August 2009 tests in which the children tested positive for oral herpes but negative for genital herpes. She also admitted that she had never seen a positive test result for genital herpes for C.N.R.; she was not asked whether she had ever personally seen a positive test result for the other two children.

Two other witnesses from DFPS summarily testified that the children suffered from both oral and genital herpes. Lisa Bourgoyne, a supervisor for the Forensic Services at the Harris County Children’s Assessment Center (CAC), testified that the children were initially referred to CAC because, according to the information provided to CAC, all three “had tested positive for herpes 1 and 2, and one of the children had disclosed they were taking a bath with their father.”[5] Bourgoyne did not testify as to personal knowledge of the herpes testing or that she had reviewed the medical records, but expressly based her testimony on the information provided to CAC by DFPS when it referred the case to CAC.

Lanicia McCray, a “specialist” with Child Protective Services, testified without objection that she had “been informed” that all of the children tested positive for both oral and genital types of herpes, though she did not identify who informed her of this. She then discussed the June 15, 2010 medical reports as “show[ing] the positive test for both [S.M.R. and G.J.R.],” though these reports indicate a positive test only for type one (oral) herpes. McCray admitted that DFPS does not have copies of all of the herpes test results. She offered no explanation for their omission, except that DFPS did not receive them from the foster care agency. The omission of some herpes test results would not be critical if the medical records in evidence confirmed her testimony, but they did the exact opposite.

There are also two documents in evidence, admitted without objection, containing hearsay statements indicating that all three children suffered from both oral and genital herpes: the “Extended Forensic Evaluation” prepared after G.J.R. underwent evaluation and DFPS’s “Permanency Plan and Permanency Progress Report.” The hearsay statements in these documents regarding herpes are either made by or attributed to someone at DFPS, not a medical record or provider. No evidence ties these representations to any specific medical records.

In sum, all of the evidence that the children had type two (genital) herpes appears to have originated with statements to this effect made by someone at DFPS. These statements are not supported by the medical records in evidence, and no witness has identified any specific medical record, in evidence or otherwise, as supporting these statements.

                    (iii)     Transmission evidence

DFPS suggested throughout the trial that the father, S.H.R., passed herpes to the children through sexual activity. But, as S.H.R. points out, there was no medical testimony to explain how either type one or type two herpes is transmitted, whether a person infected with type one can infect another person with type two, or even if both types can only be spread through sexual contact.

Wade-Zeller, the licensed professional counselor called to testify by DFPS, did not review any medical records for the children, but testified that if they had “sexually transmitted diseases” it would indicate that they had been sexually abused.[6] She did not otherwise offer any testimony about the transmission of herpes. S.H.R. tested positive for genital herpes in October 2009; there is no evidence that he ever tested positive for oral herpes. The evidence does not contain any herpes testing for the adult male who lived with their mother. The mother denied that she had herpes, but she was never tested. DFPS did not present a physician or other herpes expert or other evidence concerning the transmission of oral or genital herpes and specifically whether they could be transmitted by bathing together or whether type one (oral) herpes could be contracted from someone with type two (genital) herpes but not type one herpes. The “Extended Forensic Evaluation” acknowledges that DFPS was unable to determine if the children’s herpes “was contracted sexually.”

b.       Other sexual abuse evidence

DFPS also contends that forensic evaluations disclosed that G.J.R. was sexually abused by her “daddy,” S.H.R. Virtually every one of DFPS’s six witnesses testified that they had “concerns” about potential sexual abuse by the father. But they did not affirmatively give an opinion that S.H.R. had sexually abused G.J.R. Their opinions only reached the level of “concerns” because the sole source of the conclusion was an interview of G.J.R. that they readily conceded had problems that made it inconclusive and that required further evaluations of G.J.R. Those further evaluations were not completed because G.J.R. became upset during the interview process. At trial, none of the children were called as a witness. Nor did either side call Dr. Pessikof, a psychiatrist who was treating the children, the mother, or the foster parents to testify. Two witnesses who actually spoke directly with the children testified, but only one of them had heard any statements regarding sexual abuse and that was only for one child, G.J.R., who was four years old at the time of the interview.

The only person to whom an outcry statement was made was Claudia Mullin, a forensic interviewer with the CAC. She interviewed both of S.H.R.’s two oldest daughters, G.J.R. and S.M.R., who were five and six at the time of trial. Mullin did not identify any claims of sexual abuse by S.H.R. Mullin’s interview of G.J.R. lasted thirty-seven minutes and its video recording was admitted into evidence. Mullin testified that G.J.R. described to her a number of events constituting sexual abuse by her “daddy” and paternal grandfather.[7] Mullin believed there was a “significant quality and quantity of details” provided by G.J.R.[8] Because Mullin was “concerned” about the accuracy of G.J.R.’s statements, she did not make any determination that sexual abuse had occurred; rather she recommended that an “extensive forensic evaluation” be conducted “because there was a need for clarification.” She also testified that it was not her job to determine whether sexual abuse had occurred. Mullin explained:

I was concerned because she was mixing two traumatic events together and it was getting muddy or unclear at that point which is why I recommended the extended evaluation. She kept talking about a fire that had happened in the home, and so it was hard to tell because of her age, and the two traumatic events that she was talking about to clarify what she was talking about at that moment, and how those two circumstances she was talking about in terms of the location and time fit in.

When asked whether, in her professional opinion, the children were sexually abused, she stated, “I don’t have an opinion about that.” She further stated, “I don’t know because I don’t do the full investigation. . . . [I] don’t have an opinion about whether they were sexually abused.”

Lisa Bourgoyne was a supervisor for CAC forensic services and signed the Extended Forensic Evaluation report. She likewise testified that the interview created concerns and therefore an evaluation was recommended so they “could clarify the information” and because “there was so much confusion” and “some inconsistencies.”

There were also uncertainties regarding the identity of the “daddy” to whom G.J.R. referred in the interview. G.J.R. used the term “daddy” to describe action taken during a home fire by another man, sometimes referred to as the mother’s “boyfriend,” with whom the children and their mother lived at that time. The fire occurred at a home in Galveston where G.J.R. lived with her mother, the “boyfriend” who owned the home, and others. G.J.R. suffered nightmares about the fire, and there were suspicions that she started the fire because she did not want to move. She told Mullin that her “‘daddy’ pulled out his penis and peed on” the floor in her room where the fire occurred. She said that she was “mad” at her daddy for “peeing on the carpet” in her room. According to G.J.R., he then spanked her and then took his clothes off as he drove his truck, and she in turn tried “to get my dad’s truck with my teeth.” S.H.R. testified that he never lived at the Galveston house and he was not present at the fire. The fire investigation report supports his testimony.

Mullin generally conceded that she “could not say” to whom G.J.R. was referring when she used the term “daddy” or “father.” Mullin testified, “I asked her in the beginning who her daddy was, and I cannot tell you because I did not write verbatim what name she answered.” She admitted that she did not clarify in the interview about whom G.J.R. was speaking when she used the word “daddy.” Mullin admitted that she could not accurately answer whether “‘daddy’ was either the man that mommy was involved with or [S.H.R.].”

Q.      So as a part of your interviewing technique, wouldn’t it have been a good idea to establish who the child was talking about when she was referring to “daddy”?

A.      Yes.

Q.      And you failed to do that correct; correct?

A.      Yes.

The trial court later acknowledged that “she said and she did testify that she did not ask who daddy was, so let’s just go on. I think you’ve established that.” Mullin also testified, however, that G.J.R. was “sufficiently mature enough to know” the identity of her father. Nonetheless, Mullin did not assume that “daddy” referred to her biological father.

The uncertainties about the identification of “daddy” were confirmed by Mullin’s supervisor, Bourgoyne, who reviewed the video-recording of Mullin’s interview. Bourgoyne agreed that “it would have been appropriate” for Mullin to establish who G.J.R. was referring to as “daddy.” After watching the tape, Bourgoyne agreed she could not identify S.H.R. as “daddy.” She explained, “when [G.J.R.] made her statement, there was a lot of concern about what exactly she was talking about and that’s why she [was] referred to the extended assessment.” While Mullin testified that G.J.R. had the maturity to know who her mommy and daddy were, G.J.R.’s use of the term daddy when referring to the acts of a male at the Galveston fire shows at least some level of confusion and could not be disregarded by a reasonable factfinder, particularly in view of the concessions made by Mullin in cross-examination.

Based on Mullin’s recommendation, G.J.R. and her two sisters underwent a more extensive forensic evaluation. In addition to her position as a supervisor for CAC’s Forensic Services, Bourgoyne is a clinician and staff therapist with a specialization in child sexual abuse and was accepted by the trial court as an expert on forensic evaluation. The extended evaluation consisted of four sessions of behavior observation and assessment, an interview of G.J.R.’s former and current foster mothers, an interview with her child advocate, the preparation of a child behavior checklist, and a child sexual behavior inventory. The behavior observation sessions were conducted by Desiree Gallagher, who did not testify during the trial. Bourgoyne watched the video-recording of Mullin’s interview but never talked with G.J.R. or her foster parents. She only read the report and “signed off on it.”

Bourgoyne testified that several statements during G.J.R.’s interview “were concerning” about possible sexual abuse. She did not offer the opinion that S.H.R. had sexually abused G.J.R.[9] and conceded the G.J.R. had difficulty expressing herself during the interview. Bourgoyne explained that her concerns arose from G.J.R.’s statement about her mommy and daddy biting and licking her vagina and buttocks and eating Grandpa’s “chilly.” She was unable to recall whether Mullin’s use of an anatomical doll was “consistent with established protocol for forensic interviews” but did not recall having any concerns about the methods used by Mullin during the interview. She admitted that investigations of suspected sexual abuse typically include offering to meet with the alleged perpetrator and that was not done here. Additionally, the evaluation was terminated prematurely because of G.J.R.’s display of distress during the portion of the session that involved “abuse-focused questioning.” The report states, “[A]dditional attempts to complete the evaluation were not made.”

Likewise, the extended evaluation report does not reach the conclusion that S.H.R. had sexually abused G.J.R. It noted that Mullin’s interview was “highly suggestive of victimization or exposure,” but it also noted that “overall” her statements during the interview were “unclear due to the combined and unclear details and timeframes.” It stated that earlier investigations of alleged sexual abuse had been “Ruled Out” or categorized as “Unable to Determine.” It discussed the herpes test results[10] but stated that they were unable to determine if the herpes “was contracted sexually.” The report concluded that DFPS continued to have “concern regarding a likely history of abuse and neglect.” It recommended additional evaluation and therapy.

As part of the forensic evaluation, the two oldest daughters were also interviewed by Wade‑Zeller, a licensed professional counselor. Wade‑Zeller testified that it was in the children’s best interest that both biological parents’ rights be terminated and that they remain in their current foster home. She did not base that recommendation on sexual abuse. Indeed, she admitted none of the girls told her anything about sexual abuse (although it is not clear that she asked about it) and that she had seen no evidence that S.H.R. had sexually abused any of the three children.[11]

Carly McGrew, a DFPS caseworker supervisor who met and talked on the telephone with S.H.R. concerning resources available to him and the possible source of the children’s positive herpes test results, never asked S.H.R. whether he had sexual relations with the children. She testified that “it was the concern that the children would [suffer from] possible” emotional or physical abuse and “it’s a concern” that the children “would be exposed to sexual abuse if they were returned to the father.”

McGrew was the only witness who testified that the other two daughters may have been sexually abused. McGrew testified that there was evidence that the youngest child, C.N.R., was also sexually abused; the evidence was that “the siblings did make an outcry” that C.N.R. and “all of them” had been sexually abused. McGrew did not identify the acts of sexual abuse, the timing of the acts or the content of the statements. She testified that the outcry was made to an unidentified foster parent, though no foster parent testified at trial. McGrew did not speak directly with S.M.R. or G.J.R. nor is there any document evidencing any statement by either of them about abuse of G.J.R.’s siblings.

Rather than giving a definitive opinion, Lancia McCray, a “specialist” with Child Protective Services, likewise expressed “concerns of possible sexual abuse.” McCray acknowledged that she “signed off on” a December 8, 2008 treatment plan for G.J.R. from the foster care agency that contains the following progress update: “[G.J.R.’s] bio father has been cleared of any charges related to the sexual abuse of [G.J.R.] and her bio siblings.” Nikki Golyer, the children’s guardian ad litem, testified that she had never heard any of the children make any statements about being abused by their father during the therapy sessions she attended with the children. Her report states that three accusations of sexual abuse had been made against S.H.R. but they had “all been ruled ‘Unable to Determine.’”

S.H.R. denied that he had ever engaged in any inappropriate conduct with his daughters. He implicated the “boyfriend” of the mother with whom she and the children lived in Galveston. S.H.R. testified that, while the mother and the children were living with the boyfriend, the boyfriend called him and said, “hey, I’m gonna touch your girls.” When asked what the boyfriend’s exact words were, S.H.R. testified, “I believe he said I’m gonna have sex with them.” S.H.R. testified that he told the Galveston police about the threat but they refused to look into the issue, stating that the mother and her boyfriend were “just playing with your head” and that the police could not do anything about it without proof.

McGrew also testified about a conversation she had with S.H.R. in which he made similar allegations against the boyfriend. She testified the S.H.R. told her that he did not report his suspicions to law enforcement.

The psychiatrist who examined S.H.R. did not testify. The individuals who performed the follow-up forensic evaluations did not testify. The children’s treating psychologist did not testify. The licensed counselor who was seeing the children did not ask questions about sexual abuse. These omissions highlight the lack of any firm conviction by any of the employees that a crime had occurred. No criminal charges were ever filed against SHR, nor was he ever interviewed by any police officers.

c.       Conclusion on sexual abuse evidence

I would hold that the evidence is legally sufficient to support a conclusion that children had oral herpes. But I agree with the Court that the evidence regarding genital herpes is not factually sufficient—considering the entire record, including both supporting and contradicting evidence, a factfinder reasonably could not have formed a firm conviction or belief that any of the children had genital herpes. See In re J.O.A., 283 S.W.3d 336, 344−45 (Tex. 2009) (stating standard for legal sufficiency review); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244, 250 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating standard for factual sufficiency review); In re J.F.C., 96 S.W.3d at 266 (same). I also agree that the evidence was neither legally nor factually sufficient to support a determination that the children contracted herpes through sexual contact with S.H.R. I therefore concur with the Court’s opinion that the trial court could not have relied on the herpes-related evidence to conclude that S.H.R. sexually abused his children.

Turning to the other sexual abuse evidence, I believe that this evidence was neither factually nor legally sufficient. While there was considerable evidence that a number of witnesses had “concerns” about the possibility of sexual abuse, the basis for such concern was frequently ambiguous and largely subject to interpretation—interpretation upon which qualified witnesses declined to opine—and the lack of follow-up on those concerns undermines the conviction of those who had them. The absence of certain relevant and available evidence from the record does not help matters. On the whole, the evidence put forth by DFPS relating to sexual abuse was not, when taken in context and in its totality, the “higher quality” of evidence necessary to satisfy the clear and convincing burden of proof. See Sw. Bell Tel. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004); Casso v. Brand, 776 S.W.2d 551, 563 (Tex. 1989).

2.       Domestic violence, substance abuse, criminal activity and neglect evidence

The trial court could not have relied on sexual abuse in finding that S.H.R.’s parental rights should be terminated. But I believe that the evidence of domestic abuse, drug use, and neglect, accompanied by a criminal history relating to drug use and domestic violence, is legally and factually sufficient to support the trial court’s termination finding.

a.       Domestic abuse

          DHPS argues that evidence that the father “committed acts of domestic violence,” abused “illegal drugs and alcohol,” and committed “criminal acts before and after their births” provided sufficient proof of endangerment when considered in totality. Although it was not the focus of the trial, the evidence of domestic abuse supported the trial court’s termination of S.H.R.’s rights.

A history of domestic violence by the father directed at the mother is evidence supportive of a finding of endangerment. In re J.O.A., 283 S.W.3d at 346. In that case, the trial court terminated the father’s rights but the court of appeals found the evidence legally and factually insufficient. Id. at 339. The Texas Supreme Court held that the evidence was legally sufficient to support the termination of the father’s parental rights but remanded to the trial court for a new trial based on the court of appeals’ conclusion that the evidence was factually insufficient. Id. at 347. Part of the evidence that the court relied upon was the father’s history of “two or three incidents of domestic violence.” Id. at 346.[12]

We have previously held that evidence of abusive conduct toward a spouse is relevant in determining whether a course of conduct under subsection (E) has been established. Jordan, 325 S.W.3d at 724 (citing In re D.T., 34 S.W.3d 625, 636–37 (Tex. App.—Fort Worth 2000, pet. denied); see also In re D.C., No. 01-11-00387-CV, 2012 WL 682289, at *9−11 (Tex. App.—Houston [1st Dist.] March 1, 2012) (mother’s testimony that father abused her physically and mentally when they were around each other supported parental termination under subsections (D) and (E)); In re M.T.W., 2011 WL 6938542 at *5, *9, *13−14 (relying on evidence of domestic abuse to support parental termination under subsections (D) and (E)); In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (stating in subsection (E) case that “Texas courts routinely consider evidence of parent-on-parent physical abuse in termination cases”); Alanis v. Tex. Dep’t of Protective & Regulatory Servs., No. 01-96-01022-CV, 1998 WL 608332, at *9 (Tex. App.—Houston [1st Dist.] Aug. 27, 1998, pet. denied) (mem. op.) (holding that evidence of abuse between mother and her partners supported finding under subsection (E), “even if the children were not always present”). We have also held that abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child. Jordan, 325 S.W.3d at 724. Evidence of past abusive conduct “permits an inference that the person will continue violent behavior in the future.” Id.

Wade‑Zeller testified that S.M.R. described “domestic violence” and “physical abuse” between the biological mother and father. Both S.M.R. and G.J.R. reported that they witnessed fighting, screaming and yelling between the mother and “daddy.”[13] Unlike her younger sister, there was no evidence that S.M.R. referred to any adult male as “daddy” other than S.H.R., and there was no evidence that her use of the term “daddy” in her conversation with Wade-Zeller contained any ambiguity. Wade-Zeller testified the domestic violence S.M.R. recounted from when she was living with her mother and S.H.R. contributed to the children’s psychological issues. When S.H.R.’s counsel raised the possibility that the children may have referred to more than one man as “daddy,” Wade‑Zeller acknowledged that she did not know if the mother had a boyfriend, did not get a specific name for the man referred to by either child as “daddy,” and never explored the living arrangements between the mother and another man. While she admitted that she did not know if “daddy” was S.H.R., Wade‑Zeller concluded her testimony by identifying S.H.R. as the person who committed the abuse, in response to the following question: “[A]ll three of these children refer to the male you’ve been discussing in terms of domestic violence and so forth as ‘daddy’?”

DFPS also relies on evidence of domestic violence as reflected in S.H.R.’s 2004 misdemeanor conviction for making a terrorist threat to the three children’s mother.[14] In 2008, he was also convicted of interfering with an emergency call when he ripped the phone off the wall while the mother was using it during a “fight.” It was disputed whether the children were present at the time of the incident; McGrew testified that the incident occurred while the mother was holding one of the children in her arms, which S.H.R. denied. S.H.R. admitted that he ripped the phone off the wall while the children were in the house but claimed they were asleep. The trial court could accept the testimony that one of the children witnessed the event. McCray testified that S.H.R.’s misdemeanor conviction of harassment also involved the children’s mother.

In the Permanency Plan written approximately six months before trial, McCray reported that S.H.R. “was very abusive.” No details are offered on this abuse. DFPS’s exhibits also report that on three prior occasions CPS received referrals for physical abuse and once for “emotional/verbal abuse,” but each was “ruled out.”

Although not mentioned in their argument regarding the sufficiency of the evidence, DFPS’s statement of facts notes that the mother’s psychological evaluation by Newsom includes the following statement: “She stated that the children witnesse[d] their father being physically, verbally and sexually abusive to their [mother].” The court-appointed guardian ad litem’s report, which was also admitted without objection, quotes this portion of the Newsom records.

b.       Alcohol and drug use

DFPS also relies on S.H.R.’s past use of illegal drugs and alcohol and his criminal record as proof of endangerment. A parent’s use of narcotics may affect an ability to parent and therefore “qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d at 345.[15] A long history of illegal drug use, when combined with other problems in a parent’s life, is evidence supporting a finding of an endangering course of conduct by a parent. In the Interest of N.D.B., No. 07-11-00140-CV, 2011 WL 5966203, at *4–5 (Tex. App.—Amarillo Nov. 29, 2011, no pet.) (mem. op.).

This Court has also relied on drug usage to support a finding of termination under subsection (E). See e.g., Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Evidence of narcotics use and its effect on a parent’s life and her ability to parent may establish that the parent has engaged in an ‘endangering course of conduct.’”); Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 195–96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (terminating parental rights despite there being no direct evidence of parent’s continued drug use actually injuring child). “Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(1)(E).” Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). In Walker, we concluded that the father’s current use of cocaine and marijuana and arrest for delivery of drugs supported the trial court’s finding that the father engaged in a deliberate course of conduct that endangered his child under subsection (E). Id. at 618.

After the trial court signed an order giving DFPS temporary conservatorship of the children under Chapter 262 of the Family Code, DFPS enacted a plan for S.H.R. to demonstrate his suitability for custody of the children. S.H.R. admitted that he knew it was his responsibility to complete the tasks outlined in the plan. McGrew oversaw S.H.R.’s response to the plan. She testified that S.H.R. had a history of drug abuse, which was “part of the reasons for removal.” Before the children were born, S.H.R. was convicted in 1992 of possession with intent to deliver cocaine.[16] According to the Newsom Psychological records, he underwent substance abuse treatment in 1997, after his arrest. During his “substance abuse assessment” at Newsom Psychological, S.H.R. admitted to using marijuana six months earlier. During trial, S.H.R. also admitted to using marijuana “maybe about two, three years ago, ” which would have been after the birth of S.M.R. He also admitted to using cocaine “more than five years” ago. The Newsom Psychological records reflect a diagnosis of cannabis abuse “in subjective remission” and “cocaine abuse in remission.” It summarizes the significance of this use:

[S.H.R.] probably has more substance abuse problems than he admits. . . . However, the other noted issues, such as assault and terrorist threats are frequently associated with substance abuse, as are other issues, such as poor judgment in terms of relationships and problems meeting responsibilities. Because of his past treatment and his denial, it is doubtful that substance abuse treatment would have much of a positive effect on [him.]

According to McGrew, S.H.R. also “has problems with alcohol.” The extent of his problem was shown by (1) a notation in his Newsom Psychological records that he attended AA in 1997, (2) a notation in the same records that he “admits using alcohol frequently,” (3) a statement by the mother to McCray that S.H.R. “drinks a lot” and that “she’s worried about him with the kids,” (4) a diagnosis in his Newsom Psychological records of alcohol abuse “in subjective remission,” (5) a notation in the mother’s Newsom Psychological records that S.H.R., while in temporary custody of the children for a month during a separation, “was abusing drugs and alcohol,”[17] and (6) his 1997 conviction for driving while intoxicated, for which he served six months and paid a fine. At the time of the trial, he was still on the first step of the twelve-step AA program in which DFPS had ordered him to participate over a year earlier and also had not obtained a sponsor.

S.H.R. also has a long criminal record that consisted of two convictions before any of the children were born and four misdemeanor convictions after the oldest child was born. After S.M.R. was born, he was convicted for making a terrorist threat against the children’s mother in October 2004,[18] interfering with an emergency call in January 2008,[19] criminal trespassing at his girlfriend’s home after they had broken up in December 2008,[20] and harassment in March 2009.[21] He also testified that he served two weeks in jail related to a traffic offense. Mere imprisonment, standing alone, will not constitute engaging in endangering conduct. But that does not mean imprisonment is not relevant; it may be considered in determining whether all the evidence shows a course of conduct that has the effect of endangering the child’s physical or emotional well-being. Alanis, 1998 WL 608332, at *9 n.23; see also In Interest of B.R., 950 S.W.2d 113, 119 (Tex. App.—El Paso 1997, no writ), disapproved of in part by In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (“Evidence of a parent’s imprisonment may contribute to a finding that the parent engaged in a course of conduct which endangered a child’s physical or emotional well-being.”); In re V.V., 349 S.W.3d at 557 (holding evidence of incarceration, abuse of mother, and failure to contact or support children sufficient to support parental termination); see also In re D.C., 2012 WL 682289, at *9− (finding that combination of father’s domestic abuse of mother, criminal convictions leading to deportation, and failure to remain in contact with children supported termination).

c.       Neglect

DFPS also contends that S.H.R.’s frequent moves “without adequate support” support a finding of endangerment. There is evidence that S.H.R., who lived with the children’s mother for about four years, moved approximately once a year at the mother’s request and did not have adequate housing.

The record regarding S.H.R.’s ability to financially support the family was mixed, but was legally sufficient when we disregard, as we must, the contrary evidence. S.H.R.’s records from Newsom Psychological, dated January 13, 2010, state that he was unable “to maintain stable housing.” These records reflect that, at that time, S.H.R. had been living in a mobile home for the past eighteen months with his girlfriend and her eight year old son, who was autistic.

The caseworker, McGrew, testified that S.H.R. never presented documentary proof that he was employed. He reported to her that he was working for his brother doing remodeling. He lost an earlier job when he was accused of theft—which he denied—and lost another job cleaning airplanes when he lost his security badge. According to the children’s mother’s interview with Newsom Psychological, she did not work outside the home while living with S.H.R. because he supported the family. S.H.R. testified that he did not provide documentary proof of employment because he was paid in cash, but the trial court could have found his testimony not credible.

There was other evidence of neglect. McCray stated that DFPS initially removed the children on the basis of neglectful supervision and medical neglect—the girls were underweight and had scabies and G.J.R. had a sprained ankle. The family service plan and a report by Newsom Psychological[22] stated that DFPS received a referral from the children’s maternal aunt while their mother went to school and S.H.R. was incarcerated. The aunt reported to DFPS that the parents “neglected to provide her with any documents to properly care for the children. The children were sick and [the aunt] did not have the Medicaid information to take the children to the doctor.” S.H.R. testified that he had the children for three months in late 2008, but left the children with their aunt because he turned himself in on an arrest warrant for an inspection or registration sticker. According to S.H.R., he voluntarily went to the jail in order to pay a fine and remained there for two weeks. He did not dispute the statement that he failed to provide the aunt with medical records or the necessary Medicaid information. He admits that upon his release he did not go looking for his children because the aunt had moved. McGrew, a caseworker, testified that when the children first came into CPS’s custody they could not locate S.H.R. They were unable to contact him for several weeks. This is further evidence of neglect.

The trial court’s endangerment finding is also supported by S.H.R.’s failure to do anything further than have one conversation with the police about the purported threat of sexual abuse of the children he attributed to the mother’s boyfriend. If the trial court found the father’s claim credible, it could have concluded that he knowingly allowing the children to remain with the boyfriend, who engaged in conduct that endangered their physical or emotional well-being. See In re Tidwell, 35 S.W.3d 115, 119–20 (Tex. App.—Texarkana 2000, no pet.) (“[I]t is not necessary for [the mother] to have had certain knowledge that one of the [sexual molestation] offenses actually occurred; it is sufficient that she was aware of the potential for danger to the children and disregarded that risk by . . . leaving the children in that environment.”). According to his own testimony, S.H.R. knew that the boyfriend was going to sexually abuse the children. While he claimed to have notified the police, he did not notify DFPS, pursue his complaints with the police, or bring any action to terminate the mother’s rights. The omission in itself entitled the trial court to find that he allowed the children to remain in an environment that endangered them. See Jordan, 325 S.W.3d at 722 (holding evidence sufficient to support termination under subsection (D) based in part on mother allowing children to remain with violent and abusive father).

d.       Conclusion on domestic violence, substance abuse, criminal activity and neglect

Although it was not the focus of DFPS’s case, I believe the evidence of domestic violence between S.H.R. and the children’s mother, S.H.R.’s drug and alcohol abuse, the criminal record attendant to these activities, and S.H.R.’s failure to ensure a stable and healthy home environment for the children is, when taken together, both legally and factually sufficient to support the trial court’s finding of endangerment under Family Code section 161.001(1)(E). See, e.g., J.O.A., 283 S.W.3d at 346 (finding evidence legally sufficient to support determination of endangerment based on “a history of domestic violence” and admitted use of marijuana); In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (holding that father’s imprisonment, along with drug use, criminal conduct, and allowing child to live with known drug users, constitutes endangerment); In re J.T.G., 121 S.W.3d 117, 131 (Tex. App.—Fort Worth 2003, no pet.) (holding father’s incarceration before and during pregnancy, coupled with drug and alcohol abuse, sufficient to support finding of endangerment); Robinson v. Tex. Dep’t of Protective and Regulatory Servs., 89 S.W.3d 679, 686–87 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that mother’s imprisonment and drug use in violation of community supervision constitutes endangerment); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (holding that parents’ imprisonment, in addition to drug use and continuous criminal activity, is sufficient to support finding of endangerment); see also Padilla v. Tex. Dep’t of Family & Protective Servs., No. 01-07-00313-CV, 2008 WL 525750, at *1–2 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.).

Viewing the evidence of domestic violence—resulting in convictions and, ultimately, imprisonment—and drug and alcohol abuse, along with evidence of neglect of the children, in the light most favorable to the verdict, I believe the trial court could reasonably have formed a firm belief or conviction that S.H.R. engaged in a course of conduct and placed or allowed the children to remain in conditions that endangered their physical or emotional well-being. Also, considering the entire record, including both evidence supporting and evidence contradicting the finding, the trial court could have formed a firm conviction or belief that S.H.R. engaged in a course of conduct and placed or allowed the children to remain in conditions that endangered their physical or emotional well-being.

Accordingly, I would overrule S.H.R.’s first and second issues on appeal.

B.      Best interest

I agree with the Court’s conclusion that the evidence is legally sufficient to support the trial court’s best interest finding and would further find that the evidence is factually sufficient to support this finding. Much of the evidence supporting the trial court’s finding that S.H.R. engaged in or knowingly placed the children with others who engaged in conduct which endangered their physical or emotional well-being also supports the trial court’s best interest finding.

In determining whether the termination of appellant’s parental rights was in the children’s best interest, we may consider several factors, including

(1) the children’s desires,

(2)     the current and future physical and emotional needs of the children,

(3)     the current and future physical danger to the children,

(4)     the parental abilities of the person seeking custody,

(5)     whether programs are available to assist the person seeking custody in promoting the best interests of the children,

(6)     plans for the children by the person seeking custody,

(7)     the stability of the home,

(8)     acts or omissions of the parent that may indicate that the parent-child relationship is not proper, and

(9)     any excuse for acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

The Holley factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to parental termination. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The best-interest standard does not permit termination merely because a child might be better off living elsewhere. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).

1.       Desires of the child

At the time of trial, the children were four, five, and six years old and did not testify or speak directly to the trial court. Wade‑Zeller, however, testified that the children had started to form a bond with their foster parent and expressed a desire to stay with her and be adopted by her. She testified that “with all the changes that consistently happened with each time that they’ve been moved and abandoned” the children had “just now started to kind of move forward and become stable, and any kind of change in that will cause them to regress back.” Additionally, the children displayed evidence of behavioral problems when they learned that they might have to change households. McGrew also testified that the children desired to remain with their foster parent.

2.       The children’s current and future emotional and physical needs

S.H.R.’s children have exceptional needs that underscore the importance of a stable home environment so they can receive long-term care. Not only are they suffering from some form of herpes, they are also suffering psychologically. Wade-Zeller, a licensed professional counselor, testified without any rebuttal that it was in the best interest of the children that both biological parents’ rights be terminated and recommended that the girls remain in their current foster home. She testified that, “in order to continue to try and improve and not have reactive attachment disorder[,] they need a stable home so that they’re not being dropped off with relatives.” McGrew also testified that, in her opinion, it was in the children’s best interest that the biological parents’ rights be terminated so that the children could be adopted or, if not adopted, left in the custody of DFPS. She testified that she had seen an improvement in the children’s health, care, and safety after being removed from the biological parents’ care.

In her testimony, Wade-Zeller identified a number of psychological problems the children were experiencing. She diagnosed the two oldest daughters, S.M.R. and G.J.R, as suffering from “reactive attachment disorder.” She testified that all three children exhibit depressive symptoms and have been prescribed anti-depression medications. Both S.M.R., who was six at the time of trial, and C.N.R., who was four, are taking Prozac, while G.J.R. is taking several different medications. The children suffered separation anxiety because they had to live with their aunt for several months when their father was serving time for a misdemeanor.

Wade-Zeller testified that S.M.R. had “symptoms of anxiety,” “problems interacting with other children,” and “problems being left at other places.” She was afraid to be left alone without her foster mother. Her symptoms were “consistent with reactive attachment disorder.” She described “fighting” between her parents and “screaming and yelling.” She described fear that she would get in trouble with her parents. S.M.R. had to be hospitalized on three occasions for psychiatric care. On one such occasion, she was hospitalized while living with a foster mother because she “couldn’t get her under control, and the foster mom felt like she was going to hurt herself.” They have “special needs.”

Wade-Zeller testified that G.J.R. exhibited symptoms consistent with post-traumatic stress disorder, suffered from nightmares, and had trouble interacting with other children. According to the Extended Forensic Evaluation summary of discussions with the current foster mother, G.J.R. is moody, needy, whiney, angry, violent toward her sisters and foster mother, fascinated with fire and knives, and “displayed sexualized behaviors such as pulling her pants down [and] rubbing herself on a doll.” She is also withdrawn and defiant, and has shown symptoms of increased aggressiveness and depression. She is “extremely anxious” around males. The foster mother also reported that she had once seen G.J.R. put her legs in the air and say to her older sister, “Let’s act like mommies and daddies do.” Wade-Zeller also testified that G.J.R. told her of activity that she described as inappropriate “sexual acting out.” When told that she and her sisters would be moving, she began to complain of leg pain. The current foster mother also reported that G.J.R. “was being treated for Oppositional Defiant Disorder and Attention Deficit/Hyperactivity Disorder by a psychiatrist at Depelchin.”

The youngest child, C.N.R., takes Prozac and Reiperidone daily and has been diagnosed with impulsive control disorder.

In sum, these children have special needs. But there was no evidence that the father had exhibited a desire or ability to meet these needs in the past or intended to do so in the future.

3.       Dangers to the children, now and in the future

Wade-Zeller testified that an environment in which the parents fight and yell at each other is not proper for children of this age and it was not in their best interest to return to such an environment. She further testified that it was “likely possible” that the children’s psychological problems resulted in part from witnessing such events. According to Wade-Zeller “the physical abuse that was witnessed between the parents” will cause the children continuing harm in the future. McGrew also testified that it was her opinion that there would be emotional and physical danger to all three children if they were returned to either their mother’s or their father’s care.

S.H.R. has engaged in risky behaviors. He has a history of drug and alcohol abuse. Certainly a parent’s long history of illegal drug usage does not create a positive environment for the children. S.H.R.’s drug usage is a factor that may be considered in a best interest analysis. See Tex. Fam. Code Ann. § 263.307(b)(8) (West 2008) (best interest inquiry includes “whether there is a history of substance abuse by the child’s family or others who have access to the child’s home”). His unwillingness to acknowledge his alcohol problem is another indication that termination is in the children’s best interest. See Tex. Fam. Code Ann. § 263.307(b) (11) (West 2008) (best interest inquiry includes whether parent demonstrates “the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time”).

S.H.R.’s criminal record is also evidence that the court may have considered in determining the children’s best interest. Whenever he was in jail, he could not fulfill his parental responsibilities. And he was in jail on enough occasions—though the only ones after the oldest daughter’s birth were all misdemeanors—that the court could have determined that not only was he unavailable to care for his children, but he was a poor model for them.

Additionally, while the evidence was not factually sufficient to demonstrate that the children suffered from genital herpes or that the disease was sexually transmitted, it was undisputed that two of the children suffered from oral herpes.

Finally, the confusion over the identity of “daddy” is significant. There was some evidence that S.M.R. referred to a man with whom she and her mother and sisters had lived in Galveston as “daddy” when discussing a fire at that home. This created some ambiguity as to whom S.M.R. was referring as “daddy”—her biological father or the “boyfriend”—in her statements that raised concerns about possible abuse. S.H.R. testified that the boyfriend had called him and threatened to sexually abuse his children. Although S.H.R. stated that he contacted the police about the threat, the trial court could have discredited this testimony in light of McGrew’s testimony that S.H.R. told her that he did not report the incident to law enforcement. See In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). Even if the trial court credited S.H.R.’s testimony that he reported his suspicions to the police, S.H.R.’s failure to take any further action to protect his children from perceived sexual abuse by the man with whom they were living might have caused the trial court to question S.H.R.’s parenting skills, including his ability to meet children’s needs and to protect them from danger now and in the future. See Holley, 544 S.W.2d at 372. Moreover, assuming that S.M.R. referred to the boyfriend as her “daddy,” the reference indicates a lack of closeness with S.H.R. And even if neither man sexually abused S.M.R., her statements and inappropriate sexual behavior and sexual comments suggest, at a minimum, that she was exposed to sexual conduct between her parents.

This evidence weighs in favor of the trial court’s best-interest finding.

4.       Parental abilities and available programs

Closely related to the parent’s abilities and the availability of programs of assistance are (1) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision and (2) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE ANN. § 263.307(b).

“Evidence of past misconduct or neglect can be used to measure a parent’s future conduct.” In re D.M., 2012 WL 149230, at *6. S.H.R. has shown a willingness and ability to accept an appropriate agency’s assistance in some respects, but has failed in others. He failed to complete his treatment for alcohol abuse. He refused to concede that he has an alcohol problem. He did not provide proof that he had completed an anger management program until the day of trial. S.H.R.’s family service plan required him to complete four sessions of psychological therapy, but he did not. He participated in one required psychological assessment, but the evidence indicates that he was not entirely candid with the psychologist retained by DFPS. And when the assessment resulted in recommendations for therapy, parent education, vocational counseling, stress management, and substance abuse treatment, he did not complete the recommended treatments.

Even for the classes he did complete, this evidence of a recent improvement does not absolve a parent of a history of irresponsible choices. See In re D.M., 2012 WL 149230, at *7 (recent improvement does not absolve a parent of a history of irresponsible choices); see also Smith v. Tex. Dep’t Prot. & Reg. Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.) (same). S.H.R.’s testimony regarding his inability to locate his children because their maternal aunt moved and he did not know where to find them is further evidence in support of this factor.

There is also evidence that S.H.R. did not cooperate with DFPS while his children were in its care and that he failed to provide the necessary medical records to the aunt. Finally, there is no evidence of any support system from family or friends to assist S.H.R. with providing for the children’s special needs. There was testimony, on the other hand, that DFPS did have programs available to assist any foster or adoptive parent in meeting the children’s needs.

5.       Plans for children and stability of the home

The children have lived a life of instability, including a voluntary out-of-home placement by S.H.R. with the children’s maternal aunt. The children moved on a yearly-basis. After the parents last separated in approximately 2007 or 2008, they lived with their mother and there was no evidence showing how often the father spent time with the children during the intervening two to three years before the trial of this case.

There was also evidence that the father was unable to adequately provide for his children, another factor relevant to determining the children’s best interest. See In re D.M., 2012 WL 149230, at *6 (concluding that legally and factually sufficient evidence supported termination under subsection (E) in part based on father’s “instability” and “six-months’ disappearance during the case”); In re H.N.H., 2012 WL 117861, at *25 (evidence of unstable work history and frequent moves supported conclusion that the mother’s “conduct, including omissions, endangered her children’s physical or emotional well-being and that [the m]other exposed her children to an unstable environment that endangered her children’s physical or emotional well-being”); see also In re T.C., No. 10-10-00207-CV, 2010 WL 4983512, at *4–5 (Tex. App.—Waco Dec. 1, 2010, pet. denied) (mem. op.) (holding that although there were recent developments that showed improvements in mother’s stability, the trial court could reasonably have determined that any evidence of improvement was short-lived and outweighed by the extent of her prior history; thus, the evidence supported that mother, by living in fifteen locations among other things, had engaged in conduct that endangered the child’s physical and emotional well-being); In re Z.A.S., No. 02-11-00040-CV, 2011 WL 3795231, at *15–16 (Tex. App.—Fort Worth Aug. 25, 2011, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court’s 161.001(1)(D) and (E) findings because evidence showed that mother, among other things, had moved frequently and had limited employment); In re J.G.K., No. 02-10-00188-CV, 2011 WL 2518800, at *39–41 (Tex. App.—Fort Worth June 23, 2011, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court’s (D) and (E) findings because evidence showed that mother, among other things, failed to seek medical treatment for child, moved frequently, had limited employment, and exposed her children to domestic violence); In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at *4–5 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court’s (D) and (E) findings because evidence showed that father had engaged in conduct that subjected his children to life of instability and uncertainty, including living at more than five residences over five years; using illegal drugs; engaging in domestic violence; and exhibiting anger issues). Although S.H.R. claimed he was employed at the time of trial, the trial court could have discounted this testimony, given that he failed to provide his case worker with proof of employment. He lived in his girlfriend’s mobile home with her autistic child and admitted that the home needed repairs because of hurricane damage.

The trial court could have also concluded that S.H.R.’s home environment lacked stability. S.H.R. admitted that he “called CPS in December of 2008 to tell them that [he] wouldn’t be able to take care of the kids that [he] had in [his] possession at that time . . . because [he] had broken up with [his] girlfriend.” He never offered any explanation for how he could care for the children if they broke up again.

The trial court, as the finder of fact, was free to consider S.H.R.’s history of instability in determining the likely future for these children. See In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.) (“Ms. Woods has failed to show that she is stable enough to parent B.S.W. for any prolonged period. The trial court was entitled to determine that this pattern would likely continue and that permanency could only be achieved through termination and adoption.”). The trial court could have concluded from this evidence that S.H.R. lacked the willingness or ability to provide for the children’s futures and that S.H.R. could not offer a permanent and stable solution for the three children at the time of trial. A parent who lacks stability, income, and a home is unable to provide for a child’s emotional and physical needs. In the Interest of J.T.G., No. 14-10-00972-CV (Tex. App.—Houston [14th Dist.] January 19, 2012); White, 2005 WL 174546, at *8.

Finally, S.H.R. offered no evidence regarding any plans for the children. Despite their significant psychological and medical needs, S.H.R. did not testify or otherwise attempt to show that he had given thought to how he would provide for the children’s needs if he was given custody of the children.

This evidence weighs in favor of the best-interest finding.

6.       Acts or omissions and any excuses for them

There was also evidence of acts or omissions by S.H.R. that indicated the existing parent-child relationship is not a proper one. First, there is a history of CPS involvement with the family before DFPS took custody of the children. See In re M.T.W., 2011 WL 6938542, at *36 (considering such evidence in determining best interest of children). Second, there is a history of S.H.R. being absent from the children’s lives for meaningful periods of time before DFPS took custody of the children. While S.H.R. contended that the reason he did not go back to look for his children after being released from jail was that the aunt who was caring for them had moved, the trial court could have determined the S.H.R. should have made more of an effort to locate his children. Third, there is the evidence of domestic violence and drug usage discussed above. The record does not contain evidence that would excuse these behavioral patterns or indicate that they will not continue in the future.

7.       Conclusion on best interest

Considering all the evidence in relation to the Holley factors in the light most favorable to the trial court’s finding, a reasonable trier of fact could have formed a firm belief or conviction that termination was in the children’s best interest. J.F.C., 96 S.W.3d at 266. And viewing all the evidence in a neutral light in relation to the Holley factors, the trial court could have reasonably formed a firm belief or conviction that termination was in the children’s best interest. Accordingly, I agree that the evidence is legally sufficient on the best-interest finding and would hold that the evidence is factually sufficient as well.

Conclusion

DFPS spent a great deal of time and effort trying to prove their contention that S.H.R.’s parental rights should be terminated because he sexually abused his children and sexually transmitted herpes to them. The legal and factual insufficiency of these two allegations is, in part, a reflection of the elevated standard of proof required in parental termination cases—clear and convincing evidence. That standard is an “error-reducing” standard. Santosky v. Kramer, 455 U.S. 745, 761, 102 S. Ct. 1388, 1398 (1982). Certainly DFPS raised a great deal of suspicion about sexual abuse. But suspicions and speculation are not evidence. Nor is innuendo, even when offered in large quantities, a substitute for factual evidence. Therefore, the evidence is legally and factually insufficient to support a determination of sexual abuse.

Nevertheless, I believe the evidence was legally and factually sufficient evidence to support the trial court’s conclusion that S.H.R.’s parental rights should be terminated under section 161.001(1)(D) and (E). This evidence supports a conclusion that S.H.R. abused his wife in front of the children, had a history of drug and alcohol abuse that was likely to continue in light of his knowing failure to comply with the DFPS plan and denial of any substance abuse problem, had a history of imprisonment, and exhibited periods of absenteeism and neglect. I therefore respectfully dissent.

                                                                      Harvey Brown

                                                                      Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, dissenting.

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[1]         Although requested by DFPS, the trial court did not terminate based on section 161.001(1)(O) of the Family Code. See Tex. Fam. Code Ann. § 161.001(1)(O) (West 2011) (providing for termination of parental rights based on failure to comply with court order specifically establishing actions necessary for parent to obtain return of child).

[2]         The complete medical records of the children were never offered into evidence.

[3]         DFPS points out that S.H.R. conceded in cross-examination that the medical records from June 15, 2010 showed that S.M.R. tested positive for herpes types one and two and G.J.R. tested positive for herpes. But this contention is based on DFPS’s characterization of these medical records, which S.H.R had no expertise or medical knowledge with which to challenge.

[4]         The record also includes medical records in which the girls tested negative for both type one and type two herpes. Carly McGrew testified that herpes is difficult to detect because a person who has herpes will only test positive for herpes if the test is taken during “an active outbreak.”

[5]         Claudia Millin of CAC also testified that one reason for the investigation was that the children were bathing with their father. They also “seemed to be afraid of adults.”

[6]         DFPS admitted, however, that herpes may be transmitted without sexual contact.

[7]         In cross-examination, S.H.R. challenged the accuracy of G.J.R.’s description of the events regarding her father and mother because her parents separated in 2007, when she was only two years old. Mullin did not interview the youngest child, C.N.R., age two at the time of the interviews, because “she was too young and non-verbal at the time.” S.H.R. also pointed out that during the interview G.J.R. in response to a question of whether anyone had “ever done anything to you that hurt you or you didn’t like,” did not identify any abuse. Instead she complained that her older sister was “always hitting her.” During the “extended evaluation,” G.J.R. also reported that she trusted her daddy, her daddy loved her, and she enjoyed playing with him.

S.H.R. also noted that G.J.R. made inconsistent statements when asked specific questions using anatomical dolls. For example, Mullin testified that during the interview she asked:

Q:      “When you were at your mommy and daddy’s, did someone ever touch you there … [p]ointing to the vagina?”

A. And she said no.

[8]         Mullin testified, without explanation and in response to a leading question, that G.J.R.’s statements satisfied “the sufficiency standard for validation of [her] concerns.”

[9]         She denied that Mullin’ interview shows that G.J.R. was sexually abused; “it says there are concerns about her sexual abuse.” She further testified as follows:

Q.      And if I were to tell you that your employee Ms. Mullin has testified earlier today that she was unable to say whether or not these children – this child in particular was sexually abused; would you dispute that?

A.      No, I do not.

Later, in response to a question of whether she believed G.J.R. was sexually abused, she responded “there are a lot of indicators that sexual abuse was reported in this report.” When further pressed, she explained that given her symptoms and statements, “the likelihood of sexual abuse is there.” Burgoyne did not identify the person who abused G.J.R. or explain whether the symptoms that were the basis for her statement were G.J.R.’s psychological problems or herpes.

[10]        At one point it states that all three children tested positive for herpes types one and two and at another point states that G.J.R. tested positive for herpes types one and two.

[11]        Wade-Zeller also testified that she had “been informed” of activity by G.J.R. that she described as inappropriate “sexual acting out” but did not describe the activity.

[12]        The father also had a history of daily marijuana use. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

[13]        According to G.J.R., the abuse included “multiple occasions” when “daddy hit her mom.”

[14]         DFPS also cites documents from the Newsom Psychological report that S.H.R. violated parole due to a charge of a domestic altercation with the mother of two other children who are older than the three children in this case. This charge was later dismissed. The Child Advocates’ report states that he was arrested for assault causing bodily injury in 1994, but that charge was also dismissed and no details are in the record. It is not clear whether that incident involved the mother of his two other children, or if it is the same incident.

[15]        In J.O.A., the father missed at least two drug screenings and admitted that he had used marijuana on a daily basis. See In re J.O.A., 283 S.W.3d at 345. The father had also passed three drug tests, and there was no evidence of continued drug usage. Id. Nevertheless, the Court found this evidence supported the trial court’s termination order. Id. at 346.

The Court cited with approval In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child.”); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. Drug use and its effect on a parent’s life and his ability to parent may establish an endangering course of conduct.”) (citation omitted).

[16]        He was sentenced to seven years but only served one.

[17]        No details on this incident were developed in the evidence.

[18]        He served one day.

[19]        He was fined $300 and served two days.

[20]        He was sentenced to eighteen days and fined.

[21]        He was sentenced to eleven days.

[22]        S.H.R. was evaluated by Dr. Ross Keiser with Newsom Psychological on January 12, 2010. The mother was seen at Newsom in August 2009 but did not complete her evaluation