### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00169- CV

T. R. and B. R., Appellan ts

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -F M- 10- 0005 06, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellants T.R. and B.R. filed notices of appea l from the judgme nt and decr ee terminating their pare ntal rig hts to five children. Appellants’ appointed attorney s have filed Anders

sty le briefs stating that, afte r conscie ntiously examining the rec ord, they have found no ar gument that could possibly persua de the court to reve rse or modify the judgme nt. See Anders v. Calif ornia , 386 U.S. 738, 744 (1967); Taylor v. Texas Dep’ t of Protective & Regulatory Servs. , 160 S.W .3d 641,
646 (Tex. App.—Austin 2005, pet. denied)

. Both appellants’ attorney s seek to withdraw as counsel. The attorney ad litem for th e ch ildren has filed a brief concur ring with appellants’ attorney s’ deter mination that this appea l is frivolous. Neither appellant has filed a pro se brief. After revie wing the rec ord, we find that the appea l is frivolous as to eac h appellant, we g rant both appellants’ attorney s’ motions to withdraw as counsel, an d we af firm the judgme nt terminating the pare ntal rig hts of both appellants as to all five children.Stand ard of review f or suff iciency challenges in parental-rights ter m ination cases A trial court can involuntarily terminate a pare nt-child rela tionship only if the court finds by clea

r and convincing evidenc e (1) that the pare nt has committed an act or omission statutorily deeme d to war rant termination, and (2) that termination of the rela tionship is in the child’s best interest. Tex. Civ. Prac. & Rem. Code Ann. § 161.001 (West Supp. 2011). Under the ch ar ge prese nted at trial, the jury found by clea r and convincing evidenc e that terminat i o n o f appell ants ’ parental rights was in the children’s best interest and that at l east one of t he following statutory g rounds war

ranting termination was pr esent in this case :
(1) [appellants] eng ag ed in conduct or knowing ly p l ac ed t h e child [] with persons who eng ag ed in c onduct which endang ere d the phy sical or emotional well-be ing of the child; or (2) [ ap p el l ants] knowing ly place d or knowing ly allowed the child [] to rema in in conditions or surrounding s which endang ere d the phy sical or emotional well-be ing of the c hild.

See Tex. Civ. Prac. & Rem

. C o d e An n. § 161.001(D), (E) (West Supp. 2011). To “enda ng er”

means to expose the child to loss, injury , or dang er. In re M.C. , 917 S.W .2d 268, 269 (Tex. 1996). The endang ering conduct does not have to occur in the prese nce of the child. Clark v. Clark , 705 S.W .2d 21 8 , 2 19 (Tex. App.—Dallas 1995, writ dism’d). The best interests of the children

are assessed on an arr ay of fac tors, including those descr ibed by the Texas Supreme Court in Holley

2v. Adams , 544 S.W .2d 367, 371-72 (Te x . 1976). We will briefly summarize significa

nt evidence 1
from the tria l. The appellants had a h i s t o ry o f family violence prec eding the event that led to this remova l of thei r fi v e chil dren: a boy born in 1996, a g irl born in 1997, a boy born in 1999, and twin g irls born in 2003. T.R. was char g ed with domestic violence in 1998 for hitting B.R. and brea king her nose. Another time, T.R. slapped B.R. in front of their children. There was evidenc e that T.R. occa sionally

lost control w hile spanking their older boy , and he g ave the boy a blac k ey e in 2004 during a discipline session. The olde r boy told a psy cholog ist that his parents once he ld a knife to h i s t h roat. Other witnesses noted that one of the twins play ed with knives an unusual
amount. The Depa

rtment found rea son to be lieve other incidents of phy sical abuse of the children

occur red in N ovember

2004, J anuar

y 2005, and F ebrua

ry 2005. The Depa

rtment investiga ted and

remove d the children from B.R. and T.R. in 2005. Appellants underw ent counseling and pare nting classes, a fter w hich the childre n wer e re turned to them.

The evidenc e was undisputed that, in 2010, T.R. and B.R. beat their twelve- y ear -old daug hter when they discovere d that she had sk i p p ed school to g o to a mall and then lied to them.
T.R. publicly and profa

nely bera ted the g irl in her in-school suspension classroom when he and B.R.

came to pic k the child up ear ly

. When they g ot home, T.R. hit the child so hard that she fell. B.R.

The non-exclusive best-intere st fac tors g leane d from Holley v. Adams are : (1) the child’s 1 desires, (2) t he emotional and phy sical needs of t he child now and in the future, ( 3) the e motional and phy sical d an ger t o the child now and in the future, (4) the pare ntal abilities of the persons seeking custody , (5) prog rams available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individua l s o r b y the ag ency seeking custody , (7) the stability of the home or proposed place ment, (8) the acts or omissions of the pare nt that may indicate that the exis ting pare nt-child rela tionship is not a proper one, and (9) any excuse for the pare nt’s acts or omissions

. The Holley fac tors are not exhaustive, and there is no require ment that all fac tors be proved as a condition prec edent to pare ntal termination. In re C.H. , 89 S.W .3d 17, 27 (Tex. 2002). 3then beg an to question the child and, when the answe rs wer e unsatisfy ing, pushed her and hit her on

the arm and back m ore than ten t imes with an open hand. B.R. then spanked the c hild with a belt
repe atedly

—at first on her buttocks and then, when the child moved, B.R. struck her “whe reve r the belt had lande d” including on her f ace an unspec ified number of times. When the belt flew out of her hand, B.R. hit the child with a shoe an unspecifie d number times, at least once in the fore head. 2
The child tried to leave the house, but T.R. interce pted her. There was testimony that he may have put his hands around the child’s throat, squeezed for about thirty seconds, and then thrown her to the
g round. Photos of the child afte r the be ating wer e admitted at the tr ial.

The Depa rtment first remove d only the g irl who was beate n but, afte r considering the fac ts and family history , the Depa rtment decide d that t h e re m ai n i n g children wer e in dang er and

remove d them, too. The pare nts’ assault on their daug hter led to criminal char g es, g uilty pleas, and probate d sentenc es. Both pare nts descr ibed the incident as abuse and both expressed remorse . They
ag ree d to probation order s that restric ted them to supervised visits with their children for seven y ear s.

Other evidenc e reg arding the par en ts’ car e for the children and the children’ s best interests was more mi x ed. Appellants m et wit h teac hers, said they valued education, helped with school eve nts and sports prac tices, and, afte r t he children wer e removed, complete d improvement classes. Thera

pists testified that appellants wer e making prog ress, that the c hildren we re happy to

see t h em and wanted to return home eventua lly , but that the pare nts had not improved enoug h 3

t o reta ke their children. There was testimony , howeve r, that the children fea red their p ar en t s

T.R. testified that he walked out of their home periodica lly during these events as he was 2 try ing to implement the a ng er- manag ement cla sses he took during the 2005 re moval. There was also testimony that the ol dest g irl did not want to return h o m e an d wa n t ed to 3 be adopte d. 4might harm them. The older boy repor tedly had contemplated suicide befor e being remove d. The oldest daug hter t old the psy cholog ist that her pare nts threa tened to kill her and that she did not

wa n t t o re t urn to them. One of the y oung er g irls repor tedly beca

me ill from nervousne ss about a supervised visit with her pare nts, althoug h another witness testified that the child was mere ly sick. The Depa rtment case worke r testified that, althoug h appellants an d t h eir children love eac h other, she concur

red with the children’ s repor ted worry that their pare nts would abus e t h em if the family was re united. We ha ve revie wed the rec ord. Although there was conflicting evidenc e, the re cord contains more than sufficie nt evidenc e for a rea sonable fac t-finder to form a fi rm co n v iction

or belief from th e evidenc e prese nted that g rounds exis t for termination and that termination is in the best interest of the child. In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002) (leg al sufficie ncy of the evidenc e); In re C.H. , 89 S.W .3d 17, 25 (Tex. 2002) (fa ctual sufficie ncy of the evidenc e). Our revie w of the rec ord reve als no possible basis for reve rsal on this rec ord, and we conclude that this
appea l is frivolous as to both parents.

We aff irm the judgme nt terminating appellants’ pare ntal rig hts as to all five children. We gr ant appe llants’ attorney s’ motions to wit hdrawas counse l for appe llants.

J eff Rose, J ustice
Be fore Chief J ustice Jones, J ustices Pury ear and Rose Affir med Filed: May

2, 2012

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