## In the Court of Appeals Second Appellate District of Te xas at Fort Worth

___________________________ No. 02

- 22

- 00154

- CV

___________________________

On Appeal from the 78th District Cour t Wichita County, Texas Trial Court No. DC78

- CP2020

- 2337

Before Bassel , Womack, and Wal lach, JJ. Memor andum Opinion by J ustice Bas sel 

### I N THE 

### I NTEREST OF 

### A.K. AND 

### J.K., C HILDREN2 MEMORANDUM OPINI ON
After a jury trial, the t rial court signed a judgment terminating the parental rights of app ellant E .C

. ( Father ) and appellant K.C

. ( Mother ) to their two children,
A nn and Bruce

. 1 In separate briefs, both parents conten d t hat the e vidence was legally and factually insufficient to establish by clear and co n vincing evi dence that terminating their respective parental rights was in their children ’ s best interest. We
affirm the trial cou rt ’ s judgment.
I. B ackground According to the aff idavit supporting t he Department of Family and Pro tective
Services ’ original petition, shortly after midnight on Sa turday, N ovember 7 , 2020, the police responded to a verbal disturbance between Father and Mother while Ann an d Bruce were pr esent. In Novemb er 2020, Ann was three years old, and Bruce was two years old. According to the police, Father an d Mother e ach accused the other of being under the influenc e of narcotics

. After obtaining consent to search the home,
the police f ound a pipe used to smoke marijuana and a cl ear plastic baggie that they

su spected was used to p ackage narcotics. Mother had an outstandin g warrant for family

- violence assault , so the police arrested her

. As for the children , the police
released them into the care of Pater nal Gra ndmother

.

1 We use alias es to identify the child ren , and we identify famil y members by t heir relation ship t o t h e chil d ren . See Tex. Fam. Code Ann. § 1 0 9.002(d); Tex. R. Ap p. P. 9.8(b)(2 ).3 Th at same day , the De partment investigator went to t he county jail where she
met with Mother , who asserted that Father had a methamphe tamine problem and that she and Father would fight anytime she found methamphetamine in th eir home

. Mother deni ed current ly usi ng methamphetamine herself but admitted having previously abu sed methampheta mine , he ro in , and prescription pills. Mother stated
that the children would be sa fe with Paternal Grandmo ther but express ed con cerns if
th e y were ret urned to Fathe r. From the jail, the inves tigator went to the fa mily ’ s residence where she spoke
with Father. He maintained that the verbal dispute was over allegations that he had
chea ted on M other

. According to F a t her , duri ng the alter cation M other was either
under t he infl uence of methamphetamine or e xperiencing a postpartum depression
cris is

. Despite the argument, Father informed the investigator that he intended to
bond Mother out of jail the next da y . He did not know o f anyone with whom the
D epartment could plac e the children. That evening, Paternal Gra ndmother contac ted the investigator to expla in that
she w ould not be able to care for Ann and Bruce

. Paternal Gran dmot h e r related to the investigator that neither F a ther nor Mother could get of f drugs. She though t that
Father had perhaps be en sober a week but that Mother was actively abusing methamphetamine.4 The Department thus remove d Ann and Bruce , 2 a nd on the foll owing M o nday , N o vember 9, 202 0 , it filed an “ Original Petition f or Pr otection of a Child, for
Conse rvatorship, and for Termination in Suit Affecting the Parent

– Child
Relationsh ip. ” On the same date, the trial c our t signed an “ Order f or Prote ction of a
Child in an Emergency and N otice of Hearing ” in which it a ppointed the Depart ment

as the children ’ s te mporary managing conservat or. After three days of evidence, the jury deliberat ed an hour a nd twenty minutes

a nd return ed its verdict terminating both F a ther ’ s and Mot her ’ s parental rights

. Within the verdict, t he jury found grounds for terminating Mother ’ s parental rights
under S ubsection s (D), (E), ( O ) , and (P) o f Section 161.001(b )(1) of the T e xa s Family
Cod e. 3 For Father, the jury found those four groun ds p lus one mor e

— S ubsection ( L

)

2 Father maintained that the Depart men t r em oved th e ch ildren from him whil e M o ther was in jail and that the reason for the removal was Father ’ s intent to b ond Mother out of jail. If true, then Paternal Grandmother returned the children t o Father later that sa me day. The De partm e nt ’ s petition as serts tha t it rem oved the childr en on November 7 , 2020 , but the su pporting aff i davit does not specify from wh om the Depart ment removed them.

3 S ubsection (D) involv es an e ndangeri ng environment . Tex. Fam. Code Ann. § 161. 00 1(b)(1)(D). Sub se ction (E) en tai ls endang ering conduct. Id. § 161.001(b)(1)( E ). Sub s ection (O) d e als with fail ure to compl y wit h a court order setting out the actions necess ary to obtai n a child ’ s return
. Id

. § 161.00 1(b)(1)( O ). And Subsection (P ) a dd resses the use o f a controlled su bstance i n a manner that endangers a child and the fai lure to c omp l ete a substance

- ab u se program or, having completed a substance

- abuse pro gram , the contin ued use of a controlled substance

. Id. § 161.001(b)(1)( P ).5 of Section 161.001(b)(1) of the T e xas Family Code. 4 For both parents , the jury f ound
th at termination wa s in their child re n ’ s best i nterest. See Tex. Fam. Code Ann. § 161.001(b)(2).
II. Legal P rinci ples
A . Generally
In a termina tion case, the State seeks not just to limit parental righ ts but to
erase them permanently

— to di vest the paren t and child of all leg al rights, p rivi lege s , duties , and pow ers normally existing betw een them, except the c h ild ’ s right to inherit.
Id. § 161.2 06(b); Holick v. Smith , 685 S.W.2d 18, 20 ( Te x. 1985). Consequ ently, “[w]hen the State seeks t o sever permanently th e relationship b et we e n a par e nt and a child, it must first obser ve fundamentally fair p r ocedu res.” In re E.R. , 385 S.W.3d
5 52, 554 (Tex. 2 012) (citing Santosky v. Kramer , 455 U.S. 7 45 , 747

– 48, 102 S. C t. 1388,
1391

– 92 ( 1982)).
Termi n ation decisions must b e supported by c le ar and con v in cing ev idence.
See Tex. Fam. Code Ann. § § 161.001(b), .206 (a) ; I n re E.N.C. , 384 S.W.3d 7 96, 802 (Tex. 2 012). Due process demands this heightened st andard because “[ a] parental rights termination pr oc e eding encumbers a v alue ‘far more p re c i ous than an y prop erty right.’ ” E.R. , 385 S. W.3d at 5 55 (quoting S a ntosky , 4 55 U .S. at 758

– 59, 102 S. Ct . at 1397). Ev idence is clear and convincing if it “will pr oduce in the mind of the trier of

4 Subse ct ion (L) requires a conviction or community supervision f or speci fied offenses involving harm to a child

. Id. § 161.0 01(b )(1) (L). In Father ’ s case, it was for sexual assault o f a chi ld. Id. § 161.001(b)(1)(L) ( vi).6 f

a ct a firm beli ef or conviction as to the truth of t h e a l legation s s ought to be
established.” Tex. F am. Code An n. § 101.00 7 ; E.N. C. , 384 S .W.3d at 802.
For a tr ial court to te rminate a parent

– child relationship, the p art y seeking
termina tion must establis h , by clear and c o nvincing evidence, that (1) the pa r en t ’ s action s s atisfy just one of the many predi cate groun ds that are listed in S ub s ection 161.001(b)(1) of the Texas Famil y Code and (2) termination is in the ch ild ’ s best
interest

. T ex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C. , 384 S. W.3d at 803; In re J

.L. , 163 S

. W.3d 7 9, 8 4 (Tex. 2005 ).
B. Legal Sufficiency In evaluating t he evidence for legal sufficien cy in parental

- rights

- termination cases, we determine whether the evidence is such that a factf inder could reaso n ably
form a firm be lief or convict ion that the D ep artment proved both the particular ground for t ermination and that termination was in the chi ld’s best inter est. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002); see In re J.P.B. , 180 S.W.3d 570, 573 (Tex.
2 0 05). We review all the evidence i n t he light m o st favorable to the finding and judgment, and we resolve any dis puted facts in favor of the fin ding if a reaso nable
factfinder could have done so. J.F.C. , 96 S.W.3d at 266. We also must di sregard all
evide n ce contrary to the finding that a rea sonable fa c tf inder could have disbelieved, in
addition to co nsidering undis puted evidence even if it is co ntrary to the f inding. Id. That is, we consider evidence favorable to termination if a reason able factfinder

c o uld, and we disrega rd contrary evi den ce unless a r easonable factfinder could not.7 See id. In do ing our job, we cannot weigh witness

- credibili ty issues that depend on the witness’s appearance and demeanor; that is the factfinder’s provin ce. J.P.B. , 180
S .W.3d at 573. And even when credi bil ity issues ap pear in the appellate record, we
defer to the f actfinder’s det erminations as long as they are not unreasonab le. Id.
C. Factual Sufficiency We must perform “an exacting review of the enti re record” in det e rmining
whether the evidence is fa ctu ally suffi ci en t to support terminating a parent

– child
relati onship. In re A .B. , 437 S.W.3d 498, 500 (Tex. 2014). In a fa ctual

- sufficiency review, we give due deference to the factfinder’s findings an d do not supplant the judgment with ou r own. In re H.R .M. , 209 S .W .3 d 105, 108 (Tex. 2006). We determine whether, on the entire r ecord, a factfinder could reaso nably form a fi rm belief or conviction that the parent violated an alleged ground and that ter mination
was in t h e child’s best inter est. Tex. Fam . C ode Ann. § 1 61 .001(b); see In re C.H. , 89 S.W.3d 17, 25 (Tex . 2002). If, in light of the entire record, th e disputed evid ence that
a reasonable factfinder could not have credited in favor of the findi ng is so signific a nt that a factfinder could not rea son ably have fo rm ed a firm belief or conviction in the
truth of its finding, th en the evidence is factually in sufficient. H. R.M. , 209 S.W.3d at
108.
D. Best Interest There is a strong presumption that keep ing a child wi t h a parent is in the child’s
best int erest. In r e R.R. , 209 S.W.3d 112, 116 (Tex. 2006 ) . We review the entire8 record to determine the child’s be st interest. In re E.C .R. , 402 S.W.3d 239, 250 (Tex. 2013). Evidence that is pro bative of grounds under Sec t ion 161 .001(b)(1) ma y al so be prob at iv e of best interest under Section 161.001(b)(2). Id. at 249; C .H. , 89 S.W.3d at
28. Nonexclu sive factors th at the factfinder in a termination case may also use in determining the child’s be st interest include:
• the c hild’s desires;

• the child’s em ot io nal and physical needs now and in the future;
• the emotional and physical danger to the chi ld now and in t he future; • the paren tal abilities of the individuals seeking custody; • the pr ograms available to assist these in dividuals to prom ote the ch il d’ s best

interest; • the plans for the child by these individu als or by the agency seeking cu stody;
• the s tability of the home or proposed place ment; • the parent’s acts or omissions that may indicate that the existing par e nt

- child

rel atio nship is n ot a proper one; and • the parent’s excuse, if any, for the acts or omissions. Holley v. Adams , 544 S.W.2d 36 7, 371

– 72 (Tex. 1976); s ee E.C.R. , 4 02 S.W.3d at 249;
E.N.C. , 384 S.W.3d at 807. T hese factors do not form an exhaus ti v e list, an d so me factors m ay not apply to some cases. C.H. , 89 S.W.3d at 27. Furthermore , undisputed evidence of just o ne factor may s uffice in a particular c ase to suppo rt a finding that termination is in the child’s best interest. Id. On the other h a nd, the
pr esen ce of palt ry e vidence relevant to each factor will not support such a findin g.9 Id. ; In re C.G. , No. 02

- 20

- 00087

- CV, 2020 WL 4518590, at *7 (Tex. App.

— Fort
Wo rth Aug. 6, 2020, pet. denied) (mem. op.); In r e J.B. , No. 02

- 18

- 00034

- CV, 2018
W L 3 289612, at *4 (Tex. App.

— F or t Worth July 5, 2018, no pet.) (mem. op.).
III. Discussion
N either parent contests the jury findings on the gr ounds of termination. See Tex. Fam. Code Ann. § 161 .001(b)(1). Rather, each contests the jury findings that

ter mi n ation was in t heir child ren ’ s best interest. See i d. § 161 .001(b)( 2 ).
A
. Children ’ s de sir es At the time of the 2022 trial , Ann was almost five years old, and Bruce was stil l
several months aw ay from his four th birt hday. Both lacked sufficient maturity t o express an opinio n regar ding a parental prefere nce, a nd neithe r testif ied at trial

. See
In re M.S. , No. 02

- 21

- 00007

- CV, 20 2 1 WL 2 6541 43, at *18 (Tex. App.

— Fort Worth June 28 , 2021, p et. d enied) (me m. op. on r eh ’ g) ; In re M.H. , 319 S.W.3d 137, 150 (Tex. App.

— Waco 2010, no pet.); see also Tex. Fam . Code. Ann. § 153.134(a )(6) (providing
that a child must be a t l east tw elve years old before the chi l d ’ s p reference , if any, regardi ng the pe rson to have the e xcl usive right to designate the child ’ s primary
resi d ence beco mes a factor) , § 1 56.101(a )(2) (sam e). This factor is neu tral

. B. C h ild ren ’s emotional and phy sical need s now and in the future
Both Ann and Bruce were autistic spe cial

- nee d s chi ldren. Both were delay ed in their sp eech and were receiving spee c h therapy

. Bruce had a gen etic dis o rder ,

m edi um

- chain acyl

- CoA dehyd rogenase ( M CAD ) de ficien cy , that preve nted hi s body10 from breaking down certain fats and that t hus required a special die t
. Bo th were receiving occupational therapy , which the children ’ s case worke r described as therapy designed to help the m developmentally

. This factor, by it self , is neutral. H owever, the children ’ s extreme you th and specia l needs place a premium on parenta l abilities an d the stability of their home.
C . E mot ional and p h ysical d anger to t he ch ild ren now and in the futur e 1 . The present investigation w as t he Department ’ s third for Fathe r and Mother
Father and M o ther had a history of endangering first Ann and later, after
Bruce ’ s bi rth, both Ann and B ruce. T he Depa rt men t investi gator testified that the Department had investigated F a ther and Mother on three occasions

.

a . Ann ’ s birt h i n 2 017
The first occasion was when A nn was born in 20 17 ; both Mother an d Ann

test ed positive f or methamphe tamine. Father and Mother agreed to place Ann with
Paternal Gran dmothe r and, fu r ther, to voluntarily work services with the Department ’ s F a mily B ased Services. Mot h er completed her servi ces and obtained sobriety; in c ontrast , Father conti nued to test positive for methamph etamine. The
D e partme nt returned Ann to M other, and with the Department ’ s approval, both
Mother and Ann moved to Washington , where Mother had family

. Fa ther re m ained
in Texa s . As Mother explained t o the jury, “ They told me as l ong as I left him, I11 didn ’ t go back to hi m , that there was no danger, there was no reason for [the
De partment] to be involved. ” T h e Depar tm ent t hen c losed t he case.
b
. The eye

- socket inciden t — Augus t 2020
The second occasion was in August 2020. By thi s time, Ann was three years old, and Bruce w a s two years old. Both children were in the home whe n M o ther ’ s e ye socke t was b roken, and Bru ce had either been in the room when the i ncide nt happened or had entere d the room shortly thereafter

. The investigator asserted that Father had a ssaulted Mother a n d that Mother
had said th at F a the r ha d been using me thamphetamine and had been diagnosed with bipolar disor der and post

- traumatic stress disorder ( PT SD )

. 5 Fa ther, for his part, asserted th at Mother had assaulted him and that when he grabbed her, they bot h fe ll,
and Mother in ju red herse lf in th e fall

. Father commented, “ I don’t see how in the hell that could have happe ned.” Father main tained that Mother had injured her eye socket when her head hit his in th e fall. He maintai ned his back wa s hurt in th e s am e incident.

5 Father was presc ribe d Depako te, a mood stabilizer, see In re G.F. , No . 0 2

- 21

- 0026 7

- CV, 2022 WL 524138, at *4 n.8 (Tex. App.

— Fort Worth Feb. 22, 2022, pet. denied) (mem. op .), and Tr a zadone, a ps ychotropic medi cation used to treat depression, se e J. B. v. Tex. De p ’ t of Fam

. & Protective Serv s . , No. 03

- 21

- 00325

- C V, 2021 WL 545 665 3, at *1 (Tex. App.

— Austin Nov. 17, 2021, pet. denied) (mem. op.). He was not taking his medications at the time of t rial

.12 Father said that both he and Mother were arrested for assault, but he filed a n affidavit of nonp rosecution , so the charge again s t Mother was dismissed. F a ther ’ s

s ituation was otherwise ; the as sault charge ag ainst him remaine d pending.

c . T he Novemb e r 7 , 2020 incident After the eye

- socket incident, Mother and the children left T exas for Washington. Thei r stay in Washington was, however, temporary. The casewor ker thought that Mother and the ch il dren had returned o n October 24 , 2020. Father
testifie d that Mot her and the children had returned to T exas and him in November
2020. I n any event, a sho rt time thereafter, t he Department launch ed its third investigation , the c ur rent one based on the e ven ts th at occurred on November 7,
2020

— th e verba l alter ca t ion, the drug pipe, an d Mother ’ s arrest on a warrant
. 2. Methamphetamine use Methamphetamine use, b y both F at her and Mother, posed a dang e r to the
children. Father admi tted bei ng a methamphe tamine addict. Mother bonded F ather
out of jail on Ja nuary 14, 2022. Father admit ted using methamphetamine the very first day that he was out
. Mother initially maint ain ed that she did n ot know if she h ad a drug problem

. When pressed, however, she denied hav ing one . On the other hand, she admitted using met hampheta m i n e a month or two before trial. Regarding Mo the r ’ s drug use, t he caseworker s a id t hat Mother had multiple positive drug screens f or methamphetamine th ro u ghout the case and that13 Mother ’ s use had wor se ned as the case progressed

. The record shows t hat Mot h e r

teste d p ositive for methamphe tamine base d on uri n e samples t ak en on January 26,
2021 ; March 10, 20 21 ; and Sep tember 17, 2021

. The re cord also shows that Mother

teste d positive for methamphetamine based on hai r samp le s taken on April 8, 202 1 ; A ugu st 2, 2 021 ; and Mar ch 3, 2022. Because Mother failed to submit to drug screens on Jun e 9, 2021 ; Ju n e 30, 2021 ; October 7, 2021 ; Februa ry 14, 2022; March 2, 2022; and March 18, 2 022 , she was deemed to have tested positive on those d ates as well.
Dru gs a nd their e ffect on a person ’ s ability to parent may qualify as an endangering course of conduct. In re M.M. , No. 02

- 21

- 00185

- CV, 2021 WL 5227177, at *5 (Tex. App.

— Fort W orth Nov. 10, 2021, no pet.) (m e m. op.) Further, evi de nce that a parent continued to us e illeg a l drugs even though the parent knew that his or her parental right s were in jeopardy is conduct showing a voluntary, deliberate, and
conscious course of conduct that endangers a child ’ s well

- being. Id. Because u si ng drugs exposes c hild ren to th e possibi l ity that the parent may be impaired or imprisoned, their use may support terminati on . Id

. Grounds for termination under Section 161.001(b)(1) may also be prob ative when determining best int erest under
Section 161. 001(b) (2 )

. E.C .R. , 40 2 S. W.3d at 250.
3
. V iolence
A nd then there is the issue of domestic viole nce. A factfinder could reasonabl y conclude that the b roken

- eye

- socke t incident resulted from domestic violence. Father did not dispu te that there was a verb al argum ent. Fath er similarly di d not d i spute that14 there was physical violence; indeed, he maintain ed that Mother had ass aulted him. Mother, however, was the person who ended up with a broken eye soc ket

. Three
months later , the p olice resp onded to anoth er domes tic disput e. During bo th
incide n ts, the children were in the home.
Father also had a pending assault charge. He was accu sed of ass aulting J ohn
Doe , 6 whom Father suspected was having relations with Mother . W hen the Department ask ed Father about Joh n Doe , Father pleaded his Fi fth Amend me nt right not to testify. In a civil case, such as this one, a factfinder may draw negative inferences from a party ’ s assertion of the privilege against self

- incrimination. In re B.B. , No s . 02

- 19

- 00250

- CV , 02

- 19

- 00251

- CV , 2020 WL 105 7308, at *2 (Tex. Ap p.— Fort Worth Mar. 5, 2020, no pet.) (mem. op.).
Domestic violenc e , lack of self

- control, and a propensity for violence may be considered as evidence of endangerment

. In re B.K. , No. 02

- 21

- 001 75

- CV, 202 1 WL
584876 9, at *5 (Tex. App.

— Fo rt Worth De c. 9, 202 1 , pet. denied) (mem. op.)

. A busi ve or violent conduct can prod u ce a home environment that endangers a child ’ s well

- being. In re J.I.T.P. , 99 S.W.3d 841, 845 (Tex. App.

— Houston [14th Dist.] 2 003,
no p et .)

.

6 Ou t of an abu ndance of caution, we use an alias for this pe rson.15 4
. Father ’ s failure to regi ster as a s ex offend e r In December 2021, Fathe r went t o jail for failure to register as a sex offen der. 7
Because th at case was still pe nding, F ather invoked his Fif th Amendment right aga i nst self

- incrimination

. See In re A.B. , 372 S.W.3d 273, 275 (Tex. App.

— Fo rt Wo rth 201 2, no pet.)

. As with the assault involving J ohn Doe, because this termination proceeding
was civil , the jury could draw a dverse in ferences from Fa ther ’ s ple a ding the Fifth. See
B.B. , 2020 WL 1057308, at *2

. A pa rent ’ s criminal history can support a finding of endangerment

. In re J.F.

- G. , 627 S.W.3d 304, 313 (Tex. 2021)

. A s part of a parent ’ s cri minal history,
factfinders can tak e into account the nature of the crimes, the duration of
inca rceration, and whether a pattern of escalating, repeated co nvictions exists

. Id.
5. Parental visits and their impact on Ann ’ s b ehavior Evidence also suggested that Father ’ s and Mother ’ s visits with A nn impacted
her behavi o r negative ly: Q

. [ BY THE DEPART ME NT ] Okay. Does [ Ann ] have a change of behavior after vi sita tions ?
A. [ BY FOSTER MOTHER] Absolutely.

7 In October 1999, F ather committed the off ense of sexual assaul t o f a chi ld , and in Ja nuary 2001, Father pleaded guilty and was placed on deferred adjudication community supervision for ten years. Father admitted pleading g uilt y to dig ital ly penetrating th e se xual organ of his four

- year

- old sist er when he was sev ente en years old , but he maintained that he pleaded guilty only so that he could ge t out of jail. Before the year was out, in N ovember 2001, Father was adju dica ted guilty and sentenced to six year s’ confinement in the penitenti ary. Father had v iolated his
co mmu nity supe rvision by committing a b urglary.16 Q. With one par ent or both parents?
A. Um, both

. Q. Let ’ s start with [ Father]

.

. . . . Q

. . . . . What

- - What are [Ann ’ s] behavi or s a fter visits with [Father] ?
A. When she ’ s seen just [ Father] that day , alo ne , she is more defiant and more aggressive. Q. O kay. When she ’ s seen [Mother] ?
A. She reverts to baby

- like behaviors and regr es ses. The children ’ s attorne y ad l item p ursue d this li ne of quest ioni ng, and F oster M other gave more deta ils : Q. [ B Y T HE AT TO RN EY AD LITEM ]

. . . . After visitat ions, do you see any change in [Ann ’ s] behavior?
A. [BY FOSTER M OTHER ] Yes, si r. Q. And ca n you explain to th e jury what those changes are?
A. Typ ically, they are baby

- like regressive st ages. She will try t o s te al a bottle fr om the baby. She will even grab a pacifier, put it in her mouth. She will begin babbling again. She wil l want you to e ven hold her and ro c k her like a baby sometime [s]

. Ther e ’ [re] other times that she will get rea l [ly] aggressive and de fi ant. She will throw

-- Just thi s past week, she threw a toy at my kid ’ s head, the nine

- year

- old. Q. Th ese

-- Do these cha nges in beha vior that you testi fied t o occur frequently after visita tions?
A. Yes, more so since .

. . May or June .

. . .17 Fo r A nn , th e parental visits wer e destab ilizing. See In re J.C.W. , No. 09

- 21

- 00231

- CV,
2022 WL 174 541, at *10 (Te x. App.

— Beaumont Jan. 20, 2022, pet . denie d) (mem.

o p.) (noting regressiv e behavior after visits) ; In re B.N. , No. 10

- 09

- 00216

- CV, 2010
WL 34342 14, a t *3 (Tex. App.

— Waco Sept. 1, 2010, no pet.) (mem. op.) (noting
violent behavior after visit s)

. The evidenc e show ed that F a t her and Mot her pos ed an e motion al and physical
da nger to their chi ld ren. This factor we igh s in favor of termination.
D
. P aren tal a bili ties of th e individuals seeking custody The Department had no concerns about Paternal G randmother or F oster Mother

. In cont rast, t he Depar tment had many c oncerns

— primarily drug use and
dome stic violence

— about returning t he children to Father and Mo th er. This factor weighs in f avor of termination.
E
. Programs availa ble to assist t he se individuals to promote the children’s best interest
T he trial court issued an order setting out the actions necessary to obtain t h e child ren ’ s return , and t he ju ry fo u nd that both Father and M other had fail e d to compl y w ith it

. See Te x. Fam. Code An n. § 161. 001(b)(1)( O ). Neither Father nor Mother contests those findings. Co n se quent ly, both Father a nd Mother had already been give n opportuniti es to wo rk services des ign e d to teach them the ski lls neede d to parent th eir c hildr en sa fely, and both had fa il ed to take advanta g e of them.18 We acknowledg e that Father and Mother worked some ser vi ces. For ex ample , b oth completed parenting classes. Addit io nally, Father co mp let ed an ange r management program and participated in individual counseling for about six months , although he was ultimately unsuccessfully discharged. Father remained employed f or the most part , a ttended the m ajo rity of his vis it ations , and was ap propria te dur ing
th os e visitations. As for Mother , she engaged in substance

- abuse counseling and individual counseling, but she was unsuccessfully discharged from the latter. Mother
al so completed a domestic violence class and, to an extent, maintained legal

em plo yme nt. Like Father, she attended the majority of her visitations and was appropriate during the m . But after ne ar ly a y ear and a ha lf, b oth par ents ha d failed to show that they had learn ed the skills necessary to provide a safe and appropriate
home for th e c hil dren. Assuming services were availabl e after the tria l, the record

s u g gests t hat neither Father nor M o ther would profit from them. This factor weigh s in favor of termination.
F
. P lans for the child ren by thes e indivi dual s or by the ag ency seeki ng cus tod y An n had been placed with a foster famil y that want ed to a dopt her

. Bruc e had been pla ced with Paternal Grandmot her ; s h e wanted to adopt him. Because bot h
Ann and Bruce were special

- needs children , the Departme nt had not found a p lacem ent tha t w as wil l ing to take bo t h children. Ne verthele ss, the foster family and
Paternal Grandmother wo rked at en suring that Ann and Bruce spent time together.19 For example , Bruce had spent weekends wi th Ann and her fost e r family, and An n had

s pent wee ke nds with B r uce an d Pa ternal Gran dmother ’ s family.
When Father was asked whether he had any plans for the children if they were

ret urn ed to him, he responded, “ Right now? I kind of don ’ t
. . . . I mean, I would
need hel p right now. N o, right now, I am n ot good to tak e m y kids. I ’ m not. ”
Mother too a cknowledged t hat she was not , at that time, able to offer Ann and Bruce

a safe and stab le home. The De partment had removed Ann and Br u ce in early
N o ve mber 20 20, but in lat e March 2022, neither parent was in a posit ion to pr ovide
the c hildren a safe and stable home.
This fact or weighs in favo r of termination.
G . Stab ility of the h ome or proposed placement
1. Father and Mother
At the time of trial, F ather w as homel es s. To the caseworke r ’ s kno wl edge,
Mother had l ive d i n a t least three different locations

. Mother maintained that at one time s he had her own apar tment, but she moved out because , as she explained, the
land lord was “ nitpi cking ” a nd ins isted that she pay her rent in full. I nitially, Mother

mov ed in wi th a c o

- w orker , but she later lived with a friend. T he casewo rker, af ter asking Mother ’ s friend about her crimin al history , had concerns and d i d not cons ider
Moth er ’ s friend ’ s home a safe and appropriate environment for the childr en. At trial,
Mother ma i n ta ine d t hat she had leased a house and was p lanning on moving in to it

on ce the trial was over.20 Since the case began, M other had four dif ferent jobs. She had worked at
Vale ro , Do llar Saver, Subway , and McDonald ’ s. At one time, Father had job s at Cent ury Te nt, A

- 1 Rentals, and a furn iture s tore. Father mai ntained that he h ad lost
his employ ment w hen he was arrested for failure to register as a sex offe nder in late
December 2021 a nd , t hereafter, rem a ined jail ed until the mid dle of January 2022
when Mother bo nde d h im out

. At tri al, Father ass ert ed that he w as self

- employed.
When asked what kind of w ork he did, he r espon ded, Woodworking. I tile floors. I can make your h ouse. I can

-- I mean, I ’ m very talented at a lot of d i fferent things. I have an [] N CCE R
c ert ificate, National Center fo r Con st ruction and Educat ional Resear ch. I ’ m a trim and upholstery technicia n. I ’ m a collision finisher technician. I ’ m like

-- I ’ v e been a plumb er. I do a lot of handyman work.
F a ther ne vertheless was ho meles s. 2. Adopt ive placements
I n contrast , t he adoptions w o uld provide both Ann and Bruce stability. B oth children were very bo nded in their placements. Both placeme nts could meet Ann ’ s and Bruce ’ s s pe cial needs. And both pl acements could provide the childre n w ith
dr ug

- free, sa fe , an d stable home s . This f actor weighs in favor of termination.21 H
. (1) Parent s ’ acts or omission s that may indicate that th e existin g parent – child r ela tionship is n o t a proper one and (2 ) parent s ’ excuses, if any, for th eir acts o r o m is s io ns 1. Methamphetamine Father admitted using m et hamphet amine through out the case

. He even
admitted us ing methamphetamine three da ys be fore trial. He a l so a ckn owledg ed that
he w as an addict.
But a ccor ding to Father, not everything about his d rug u se turned out poor ly :

“ Th ose kid s were born be cause

-- because we did drugs. We would have never met.
We would have never talked o r

-- the kids w oul dn ’ t have been

-- these kids wouldn ’ t have been born if it weren ’ t for dru gs. ”
Father mai ntained that he a nd M other w ere func tional metham phetamine users
until the Depar t ment removed the children : A. [BY FATHER] I ’ m trying

-- [ w] e d id drugs the enti re time. And if we never missed any appointmen ts

-- [ t] hose kids never missed any appointments. T hey a lways h ad diaper s, al ways had wipes, always had food and a shelter over their head. Q

. [ B Y DEPARTMENT] S o you ’ re saying t he entire time, the entire lifetime of the children, you guys were using drug s?
A. Since before they were born, but not like we are n ow. Q. So

-- A. It ’ s never been this bad. Q. Are you saying you were functi o nal methamphe tamine users until the children w ere taken?22 A. Yeah, and not on a daily basis; just occasionally. Minimizing the danger that methamphetami ne posed to Ann and Bruce , F ath er den ied that he or Mother ever used metha mphetamine around the children and explain ed that he and Mothe r wou ld take tur ns, “We ’d alte rnate. If she wanted to get high, I ’d take the c hildren[,] and she ’d get high. ” Father insi sted, “W e didn ’t do d rugs

ar ound t he kids. ” On the other hand, Fa ther admitted that he was the person who
gave Mother the methamphetamine when she was pregnant with Ann. He commented, “ I regret that. ” Father had not gone to rehab

. He had, h owever, by his count, gone to Narcoti c s A n onymo us at least five t imes.
Mothe r was rec eiving subs tance

- abuse co unseling at the time of t rial. Her
counselor acknow ledged , however, that not every one who seek s d rug treat ment wants genuinely to “ kick the ir habit. ” Her counselor a l so agreed that a dm itt i ng a drug
pro blem might be t he first st ep in treatment. M o ther ’ s counselor stated that he
tho ught that Mother was serious ab out addressi ng her drug problem, but he qu alified
hi s statement by saying that he was optimis ti c about all his c lients “ unti l t hey pro v e [d]

o therw ise. ” He added, “ But, you know, [Mother and I] just

-- we ’ ve just gotten started, so I ’ ve got no reason to think otherwise. ”
A factfinder could have r easonably questioned the s in cerity of M o ther ’ s

atte mpt to stop using metha mp het amin e . Mot her had, after all, denied having a
pro blem with methamphetamine. O t her e vidence showed that M o the r was cap able of23 dec eit : she admitted using synthetic urine in an attempt to falsi f y the r esult s of one of
her drug te sts. 2. M e thamp h etamine an d dan g er Mother acknowledged that someone on drugs was dangerous , but she poi nted
out that Fath er , when sober, p ose d no danger : “ When [Father ’s] sober, I don ’ t think
that he ’ s a danger to a ny ki ds. Um, anybody on dru gs, I wouldn ’ t let

-- y ou kn o w, they ’ re unpr e di ctable, so you obviously wouldn ’ t want them around child ren by
themse lves or whatever. But, no, I don ’ t think he ’ s a danger when he ’ s sober. ” When
the children ’ s attor ney p ressed the matter, howe ver, Mot her ad mitted t h at Fa t her was

a danger to the chi l dr en when he was high: Q. [BY ATTO RNEY AD LITE M] So to flip that, when he ’ s n ot sober, when he ’ s high on methamphetamine, he ’ s a danger to these kids, isn ’ t he?
A. [BY MOTHER] When anybo dy is high on methamphet a mines , they ’ re u npredictable; therefore , a danger to any child. Q. So [Father] , when he ’ s on methamphetamine , is a danger to th e children? That ’ s a “ yes ” or “ no ” question.
A. Yeah.
Mot her eve n con ceded that when she was high, she was a dange r to t h e children , but she minimized the d anger b y s aying t hat she wa s not high v ery often: Q. [BY THE DEPARTMEN T] Okay

. So you s aid when anyone is on meth, they are a danger to children, didn ’ t you?
A. [B Y MOTH ER] Unpredictab le , therefore

--24 Q. So when y ou ’ re o n meth , you ’ re a danger to children?
A. Uh, a nybody. I mean, I could agree with that.

. . . . Q. And you relap sed often?
A. No.
3 . Domestic violence
F a ther denied that there w as any domesti c v iolence on his or Mother ’ s par t
. He maintained that even th e eye

- socket inci dent was an acciden t
. He a gr eed that a
hom e with domestic v iolence is not a sa fe one for children.
Lik e Father, Moth er denied any domestic vi olence. And l i ke F a ther, Moth er even disputed whether domestic violence was respons ible for her brok en eye socket

— but unlike Father , sh e hedge d just a bit : Q

. [BY MOTHER ’ S ATTOR NEY ] When your orbita l bone was fractu red, do you know how that w as done?
A

. [MOTHER] Um , I don ’ t
. I m ean, I was

-- I threw my arms up and I don ’ t know. Like, I blacked

- out. Q

. [ Father] said he hit you w it h his c hin. Does that sound about right?
A. I do n ’ t know for sure. I hope so. I don ’ t want to believe that h e punched me in the eye, but, I m ean

-- [ .]
4. W hether Father and Mother were still a cou ple
Father and Mother both maintained tha t they w e re no lon ger in a re lationship.
Father testifi ed on one occasion that the y had stopped being in a re lationship th r ee o r25 four months b efore tria l and , on another occasion, about a y ea r befo re tr ial

. Mother
denied that th ey were in a roma n tic relation ship an d maint ained that their relati onsh ip
was l imited to co

- parenting. She asserted that their re lat ion ship had ended about a year earlier. T he caseworker , however, believed t hat F ather and Mother ’ s relationship was ongoing.
Mot h er admitted want ing Father t o have an other chance to get clean but
deni ed t hat

— if the chi ldren were ret urned to her

— she would let Father see the
children if he was not sober. Mother ’ s history, however, suggested the contrary
. In the earlie st investigati on

— the one i nitiated in 2017 a f t er Ann ’ s birth when
both Mother and An n ha d teste d posit ive for methamphetamine

— Mother and Ann

went to Washington with the Department ’ s approval. Sub s equently, Mot her and
F a ther had an other child

— Bruce

— in 20 18 , who was born in Washington

. At some poin t , Mother , Ann , and Bruce were all in Texa s with Fat her

. W e know this because
there was a second investigati on in T exas . I n the second investig ation

— the eye

- socket incident in August 2020

— after the Department became inv olved, Mother again went to Washingt o n ; this t im e she took
bot h children

. Unlike the previous time , however, Mo ther did so withou t the Department ’ s approval

. T he cas eworker commented, “ It ’ s concern ing when a family
leaves the state , yes, in the middle of an investigation. ” Mother denied f l ee ing the

sta te. She maintained that she went to Washington to hav e surgery on her eye socket. She expl a ined, “ I needed h elp with the children .

. . . I n e eded supp ort
. . . . I was26 gonna have surgery. ” When asked why she did not leave Ann and Bruc e w i th Father , she responde d that she took ca re of her kids an d tha t she was bei ng protective. Regar dless of the expla nation, Mother an d the chil dren were back in Texas with Father by late O ctober or early N ovember 2020

— s hortly before the
N ovember 7 , 2020 inc i dent

. Mo ther explained that she retu rned to T exas with the
children b ased on Father ’s assurances that he was s ober , although she later learned
that Father ’ s as surances were false : “ I was

. . . unde r the impression that he was sober
before I came back. W h en I came back and realized he wasn ’ t , I was ready to go
back. ” She gave the same expla n a tion when asked why she had bonded Fa ther out of jail: Q. [BY THE DEPARTMENT] Who bon ded [Father ] out of j ail?
A. [ MOTHER] I did. Q. W hy?
A. Same thing, rea lly

. He prom ised me he w as going to be sober. He promised

-- [ h] e wanted to change. He wanted to d o th ings right. He was tired of letting the kids down

. And

. . . I just gave him th e benefit of the doubt, really. He pr omised to p ay me back. Q. Ho w man y times do you think h e ’ s promised you that he ’ s changed?
A. Probably too many. Q. And as recent ly as January, you ’ ve fallen for it, right?
A. More or l ess.27 A s noted earli er, Father admit ted using methamphetamine the sam e day that he bonded out of j ail

. A fact fi nder could reasonably q uestion w hether Father and M other ’s purport ed
sep arati on wa s just a pl oy. By separati ng on two occ asions in the past , F a ther and
Mother had previou sly successfully retained their parental rights

. 5. Evidence supporting F a t her and M other
In Mother ’ s brief , she assert s that the evidence was u ndispu te d th at she
exh ibite d numerous favorable parental behav ior s . At trial, Father spoke highly of
Mother ’ s parental abilities

. When Mother ’ s attorney as ked Fa ther what kind of mo m

s h e was , Fa ther answered, “ A damn good one. ” We agre e tha t the evidence showe d
that Mother and Father l oved Ann and Bruce

. No one disputed that Father and
Mother were a ware of Bruce ’ s M CAD defi ciency and had adjus ted his diet accordingly

. And no one d isp u ted that b oth parents be have d appropriately during
visits

. B ut both were attempting to parent whil e using drug s and engaging in
domestic violence.
6 . Con clu sion
W hen the Department removed An n and Bruce, the De partment had con cerns

a b ou t do mes tic vi o len c e in Fath e r a nd Mother ’ s relationship and abou t Father ’ s and
Mother ’ s use of drugs. About a year and a half later, a reasonable factfinder could
have conclud e d that thos e concerns persisted. This factor weighs in favor of
termination.28 I . H olding
P ar amo u nt in the upbri nging of a child are s tability a nd pe rmanence . In re Z.C. , 280 S.W.3d 470, 476 (Tex. App.

— Fort Worth 2009, pet. denied) ( per curiam).
N either Father nor Mother could offer eith er child stability or perman ence. Ne ither par en t cou ld prov ide a safe ho me . The factfinder was not require d to
b elieve that M o ther had s ucceeded in leasing a hous e just as her termination trial was winding down. Even if Mother had leased a house, a reaso nable fact finder could have
conclude d tha t Mo th er ’ s hom e wo uld n ot be sa fe, given Mother ’ s drug use and giv en her relation ship with Father , or that the leased house might be a temp orary reprieve , given M other ’ s previous f ailure to pay the rent

. Father and Mother denied domestic viole nce . A fac tfinde r , h owever , is no t

com pelle d to be lieve uncontradicted testimony that is suspicious or that comes from a
biased or an interested source. M.S. , 2021 WL 2654 143, at *16

. F ather ’ s and
Mother ’ s denials b elied the fact that the police were called to the ir hom e in Augus t 20 20 a nd a gain in N ove mber 2020 for domestic disturb a nces, one of which

— the August 2020 eye

- socket incident

— involved serious injuries to M o ther and other injuries t o Father. Additionally, Father had two pending assault charges, one again st
Mot her and the ot her agai ns t J ohn Doe

. Both F a ther and M other had on going issues w ith methamphetamine.
W e hold that the evid ence is legally and factually suf ficient to show that

t erminating F a ther ’ s and Mother ’ s pa rental rights was in the best interes t of A nn and29 Bruce

. S ee J .F .C. , 96 S.W. 3 d at 265

– 66 ; In re C.W. , No. 02

- 21

- 00252

- CV, 2022 WL 123221, at *13 (Tex. App.

— Fort Worth Jan. 13, 20 22, no pet.) (mem. op.) ( address ing legal and factual sufficien cy on best int erest ) ; In re R.W. , 627 S.W. 3d 5 01, 5 06, 51 6

– 18 (Tex. App.

— Tex a rkana 202 1, no pet.) ( same ) ; see also In re M.R. , 243 S.W.3d 807, 820

– 21 (Tex. App

. — Fort Worth 2007, no pet .) (holding eviden ce factually sufficient to
suppor t best

- interest finding b ecause par ents exposed children t o domestic vio lence

an d drug abuse, mot h er ha d fa iled to obtain housing and employment, and children
flourished in foster care). We o v errule F ather ’ s and M other ’ s s ole i ssues. I V . Conclusion
Havi ng o verruled Father ’ s and Mother ’ s issues, we affirm the t rial court ’ s j udgmen t. /s/ Dabney Bassel Dabney Basse l J us tice De livered: September 29, 2022