### TEXAS COURT OF APPEALS, THIRD DIS RICT, AT AUSTIN

NO. 03
- 19
- 00881
- CV

J. B., Jr. and Y. R., Appellant s

v. Texas Department of Family and Protective Services, Appellee

FROM THE 353RD DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- FM
- 17
- 003746 , THE HONORABL E LORA J. LIVINGSTON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Following a bench trial, the trial court rendered judgment terminati ng Y.R. ’ s and J.B., Jr. ’ s parental rights to their children, J.B. and J.A.B. 1 The trial court found t hat Y.R

. (Mother) and J.B., Jr. (Father) ea ch knowingly placed or knowingly allo wed the chil dren to

re main in conditions or surroundings that endangered their physical or e mo tional well

- being an d that t hey each engaged in conduct or know in gly placed the children w ith persons wh o engaged
in conduct that enda ngered their physical or emotional well

- b eing. See Tex. Fam. Code § 161.001 (b) (1)( D), (E)

. The court also found that Father failed to comply with a cour t o rder

e stablishing actions necessary for him to obtai n the return of t he children , who had be en in the permanent or temporary managing conserva to rship of the Department of Family a nd Protective
S ervices for not less than nine mon ths as a result of th eir removal from their parents under Chapter 262 for abuse o r neglect

. See id. § 161.001 (b)(1) ( O). The court fou nd that termination

1 We us e aliases to refer to the m inors and to th eir adult relatives to protect the m inors ’ con fidentiality. See Tex. R. App. P. 9.8(a), (b).2

of both Mother ’ s and Father ’ s parental rights was in the children ’ s best interest. See id. § 161.001(b)(2). Mother and Father both appea led the tri al court ’ s order terminating the i r

re s pective pa r ental rights

. Mother challeng ed the legal and factual sufficiency of the evidence
sup porting the finding that terminati on of her parental rig h t s was in the children ’ s best i nterest. Fat her chall eng ed the l egal sufficiency of the evidence su pporting the ( D), ( E) , and (O) fi n dings and the factual sufficiency of the evidence supporti ng the finding that termination of his parental rights was in the children ’ s best inter est. We will affirm.

BACKGROU ND
In October 2016, the Department receive d a report t hat Mother had been found passed out in a car in a hot el parking lot leaving four

- year - old J.B. and one

- year - old J.A.B. playing in the parki ng lot unsup ervised

. T he Depart ment received a second rep or t the next day tha t M o ther had been passed o ut in the hotel elevator and that J.B. and J.A.B. had been left alone. By the time the Departmen t rec eived the report s , Mother was incarcerated , and the children were with Father and his mother , Tammy. When the Department contact ed Father, he
was uncoop era tive and ver b ally aggressive and told the Department to c ommunicate with Tammy rather th an with him. The Department contacted Tammy , who told them that M o ther had been released from jail and had , over her obje ction, taken the ch il d ren . T he Department det ermined that Mother had taken the children to south Texas to stay with her mother for a brief time and then returned to Austin. The Department advised Mother not to let the chi ldren be with Tammy bec ause of her history of neglect ful supe rvision and h e r cr im inal histo r y.

In November 2016, Father was arrested for delivery of a controlled substance. Mother informed the Department that she and the children had been w ith her mother in south
Texas but had returned to Austin. In Decembe r 2016, Mother was a rres ted for the f t at a3

shopping mall in Austin . Mother informed the Department that she had been incar cerated for three to four days but had been rel eased on house arrest and tha t she was staying in Austi n with a female friend. In Jan uary 2017, Mother w a s arreste d on a warrant for a charge of child endangerment related to the October 2016 incidents of neglect at the hotel. 2 A law enf or cement officer informed the Depa rt ment that the children wo uld be placed with Father. After she was released later that mont h , M othe r c onta cted the Depart ment to find out what she needed to do to complete the De part ment ’ s investigation. At the Department ’ s request, Mot her agreed to partic ipate in Family Based Safet y Services (FB SS) , an out

- of

- court progr am through which t h e De partment at temp ts to provide in

- home ser vices to a family. The Depa rtment hoped the progr am could address M o ther ’ s drug use and unstable housing situation and Father ’ s drug use as well as
prov ide parenting an d other services.

The FBSS program laste d fro m Febr uary to March 2017 during which time Mother and th e children were living with a friend and Father was living with Tammy. T he children were not to b e around eit her their materna l or paternal grandmother s because of th eir histo r ies with the Depar t ment

. The De pa rtmen t m et with Mother and the children mont hly. During that time , J.B. made an out cry that his mother kicked him and hit him. Mother denie d tha t and stated that J. B. “ was a liar. ” Mother started a n urturing parenting progr am but w as disc h ar ge d becau se of irregular attendance. In April, the Department learned that Father had been arrested for possession of methamphetamine

. W hen the Depa rtme nt attempted to visit
M o ther and the children in May, it learned that M other was incarcerated becau s e sh e teste d
p ositive for cocaine in a drug test administer ed as part of her pending criminal case. The children

2 Mother ’ s couns el suggested at trial that the warrant w as for traffic violations rat her th an for child en dangerment, but it w as und ispu ted tha t Mother wa s ar rested and t aken into police custody.4

were with the ir mater nal grandmother and au nt in south Texas. M o ther told the De partment that she did not send the children to stay with Fat h er b ecause he would not cooperate with

t he De par t ment and because he used mari ju ana. In Ju ne 2017, Father and Mother were both
in carce rated and the Depar tment p laced t he children with their maternal aunt in south Texas.

Having determined that the FBSS p rogr am was pro ving unsu c cessful, the Depart ment filed an original petition seek ing temporar y managing conservatorship of the children a n d to terminate Mother ’ s and Father ’ s parental rights to J.B. and J.A.B. in the even t reunification effor ts failed. J.B

. an d J. A.B. re mained with the ir maternal aunt until Au gust 2017 when she in formed the Department t hat she could not care for them due t o he alth issues. The children were place d with a fo ster parent in Austin. That placement was unsuccessful because of J

. B. ’ s behav i ora l issues , and the chil dren were moved to an other foster home in Austin
in December 2017. By February 2018, Mother wa s engaging in recommended servi ces . She

c o mplied with some, but not all , r equest ed drug testing. Father was incarcerated a nd h a d not
p art icipated in recommended services. J.B. and J.A.B. both had psychological eva luations and were di agnosed with Post Tr aumat ic Stress Disorder (PTS D ). J.B. was behind in his reading skills , but with his fos ter parents ’ help and after school t utor i ng , h e had c aught up. The in di vidual thera py sessions focused on working through J.B. ’ s and J.A.B. ’ s trauma. T he children bot h had

exten sive dental needs and underwent a few sur geries and got fillings to correct p roblems with

t heir t eeth

. During t h e s p ring of 20 18, M o ther was doing well in parenting c lass and had participated in individual therap y. T he Department agreed to ex tend the June 2018 deadline fo r the case becau se of Mother ’ s progress. In May 2018, the part i es entered into a Mediated
Se t tlem e nt Agre eme nt for further temporary orders. Mother was to continue to engage i n the5

family service plan and follow the reco mmendations of the p sychological evaluation. She was also required to t ake regular drug test s and was informed th at skipping a test would resu lt in a presumed positive resul t. Father did not at tend the mediation , but his attorney was present. Father wa s to provide all certificates of completion o r ot her proof of servi ces completed wh ile inca rc erated and was ordered to notify the De p a rtment and provide his contact information within forty

- eight hou rs of hi s release

.

In J uly 201 8 , Mother was arrested , h er probation was re voked , and she was inca rc erated unti l the follow ing October. Fat her was incarcerated fo r most of th e year. A f ter Mother was release d , she lived with va rious people while working on the recommended services. The case went to trial in D ecember 2018, but the Department reques ted a recess because Mother and Father had been released so re cently from jail that the De p a rt me nt wa nted to give them a chance to engag e in more services and reestablish their r elationships with J.B. and J.A. B. Mothe r and Father were to re frain from criminal activity and drug use. Father was to refrain from buying or sell ing drugs or asso cia ti n g wi th i ndiv iduals who promoted c riminal behavior.

In December 2018, the Department placed J.B. and J.A. B. with the D avidso n s , who were Father ’ s relatives. Mother was having weekly supervised visits with the children. When Fathe r was released from j ail , he als o ha d super vise d visits. The children continued to hav e behavior al issues, particularly after visits with their par ents , and were eng aged in weekly therap y . Father neither complete d the recommended services nor refrai n ed from criminal activity

. F a ther had a positive drug test in November 2018 and failed t o und ergo a dru g and alcohol evaluation. Mother , however, continue d to make progress with the recommended services and was worki ng and doing well. Meanwhile, t he Davidson s had info rmed the D epa r t ment they could no longer care for J.B. and J.A.B., so t he Department placed the m with the Smith family,6

who were id entified as J.B. ’ s and J.A.B. ’ s fictive kin. Mother w as also living with the Smiths.
I n May 2019, the parties e ntered into another Me di a te d Set tlem ent Ag reement in which the Depa rtment agreed to a plan to re turn the children to Mother. Mo ther was to have supervised visits progressing to unsupervised and overnight visits with the goal of the child ren returning to
li ve with M o ther and th e S m i t hs i n Ju ly 2019. In June 2019, Mother te sted positive for cocaine. Because the Smiths were unwilling to move Mothe r from their home and because the children could not stay in a home with a person who had a positive drug test, t he Depa rtment pl aced the ch i ldr e n w ith a foster family in Lometa, Texas.

The ca se was tri ed to the bench in a three

- day proceeding . T he court heard testimony regarding the circumstances surrounding the children ’ s removal from th eir parents and the events driving the Departm ent ’ s d eci s ion to seek terminat ion of M other ’ s and Father ’ s parental
ri ght s. The court also questioned the w itnesses. At the concl usion of the trial, the court found several predicate grounds for termina ti ng Mother ’ s and Father ’ s pare ntal rights t o their ch ild r en

a nd that termination was in the ch il dren ’ s best inter est . The court rendered judgment termin ati ng Mother ’ s and Father ’ s parental rights to J.B. and J.A.B. This appeal followed.

DISCU SSI ON Father ’ s Challen ge to Pr edicate Grounds for Termi nat ion
T he tria l court found that Father knowingly pla ced or allowed J.B. and J.A.B.

to remain in co nditions that enda nge red their physical and emotional well

- being and engaged
in conduct or knowingl y placed J.B. and J.A.B. with persons who engaged in condu ct tha t

en dang ered their p hysi cal or emotional w ell

- being. See Tex. Fam. Code § 161.0 01 (b)( 1 )(D), (E)

. The trial court also found that Father failed to comply with a court order establi shing act ion s necessary for reuni fication. Id. § 161.001(b )( 1 )(O). On ap pe al, Fat h er ch allenge s t he legal7

sufficiency of the evidence supporting the se findi ngs a s well as the factual sufficiency of the evi dence supp orting the cou rt ’ s fin ding that t ermination of his parental rights was i n the children ’ s best interes t

.

In an a pp e al fro m the termina tio n of parental righ t s , legal and factual sufficiency ch allen ges require a hei ghtened sta ndard of r eview. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002); In re C.H. , 89 S. W.3d 17, 25 (Tex. 2002). I n reviewing the legal sufficien cy , w e vie w al l the evidence in the light most favorable to the finding to determine whet her a tri er of f act could rea sonably have formed a firm belief or conviction about the truth of the Department ’ s allegations. In re J.L

. , 163 S.W.3d 79, 84

- 85 (Tex. 2 005 ); I n r e J. F .C. , 96 S.W.3d at 26 5

- 6 6.
We do not , however, disregard undisputed eviden ce that d oes not support the finding. In re J.F.C. , 96 S.W.3d at 266. In re view ing the factual sufficiency of the evi dence, we must gi ve due consideration to evidenc e t hat t he fac t f inder cou ld rea son ably have found to be clear and convin cing. Id. W e mu st consider the disputed evidence and determine whether a reasonable fact finder could have resolved that evidence in fa vor of the fi nd ing. Id. If the disputed eviden ce is so s igni fi can t that a fa ct finder coul d not reasona bly have formed a firm belief or conviction, the evidence is factu ally insuf ficient. Id. We first consider Father ’ s legal sufficien cy challenge to the court ’ s enda ngerment findings. In his brief, Fat her a ss erts o nly that because he was not able to complete the recommended services due to his incarceration, he “ could not have neg ate d the ( D ) grounds that brought the children into care, by doi ng services ” and, likewi se, “ could not have negated the ( E )
g rou nd s , by do ing services. ” Father does not contend that there was no evidence a t tri al to support a finding that he engaged in conduct that endangered the children but, rather, maintains that hi s inab ility to participate in the recommended ser vices p r eve nte d him from negating th e tria l court ’ s8

endangerment findings. Father ’ s p arti cipation in services, howeve r, is un related to whether h e
engage d in conduct constituting child endangerment; i.e. conduct that ex posed the children to los s or injury or je o p ard ize d their em otional or ph ysical well

- being. Assuming , h owever, that Fathe r has adequately challenged it, we will review the evidence presented at trial to determine whe ther it was legally sufficient to su pp ort the t rial court ’ s endangerment fi nding.

Bo th su bsection s ( D) and (E) require proof of child e ndangerment , t hat is,

“ e xposing a child to loss or inju ry or jeopardi zing a child ’ s emotional or physical well

- being. ” A.C. v. Texas Dep ’ t of Family & Protective Servs. , 577 S.W.3d 689, 69 9 (Te x. App.

— Aus tin
20 19, pet. denied) (citing Texas Dep ’ t of Human Servs. v. Boyd , 727 S.W .2d 531, 533 (Tex.
1 9 87)). “ Enda ngerment does not need to be established as an independent propo sition bu t may be inferred from parental misconduct. ” Id. “ Althoug h ‘ “ e ndange r ” me ans mo re than a th reat of

me taphysical injury or the possible ill effects o f a les s - than

- id eal family en vironment, it is

not necessar y that the conduct be directed at the child o r that the chi ld actually su ffers inju r y. ’ ”
In re M.C. , 917 S.W.2d 2 68, 2 6 9 ( Tex. 19 96) (per curiam) (quoting Boyd , 727 S.W.2d at 533 ). Under subsectio n (E) , the relevant in quiry is whether ev idence exists t hat the en dangerment of the child ’ s physical or emotional well

- being was the result of the parent ’ s conduct, inclu d ing ac t s

a nd omi ss io ns or failures to act. A.C. , 577 S.W.3d at 699. “ Termination un der this subsection must be bas ed on more than a single act or om issio n; in stead , ‘ what is required is a voluntary, deliber ate, and conscious course of conduct. ’ ” In re M.D.M. , 579 S.W.3 d 744, 764 (Tex. App.

— Ho us ton [1st Dist.] 2019, no pet.) (quo ting Jor dan v. Dossey , 325 S.W.3d 700, 723 (Tex. App.

— Ho uston [1st Dist.] 2010, pet. denied)).

“ A parent ’ s conduct that subject s a child to a life of uncerta inty and inst abilit y endan g ers the c hi ld ’ s phy sical and emot io nal well

- being. ” Id. Thus, “ ev idence of c riminal9

conduct, convictions, or impri sonment is relevant to a review of whet her a parent engaged in a course of conduct that endangered the well

- being of the chil d. ” Id

. at 36 0

- 61

. “ A fa ctfinder may also infer that a parent ’ s lack of contact with the ch ild and absence from the child ’ s life endangers the chi ld ’ s emotional well

- being. ” In re M .D.M. , 579 S.W.3d at 765 (citing In re R.A.G. , 545 S.W.3d 645, 652 (Tex. App.

— E l Paso 2 017 , no p et .) ) ; s ee In re U.P. , 105 S.W.3d 222, 236 (Tex. App.

— Houston [14th D ist.] 2003, pet. denied) (concluding th at parent ’ s criminal conduct, which resulted in pare nt ’ s imprisonment and absence f rom child ’ s life, created

“ emotional vac uum ” in chi ld ’ s lif e that e ndangere d chi ld ’ s well

- being). On this record, we conclude that t he evidence is legally sufficient to support the trial court ’ s finding under sub sec tion (E) that Father engaged in conduct that endangered th e child ren . Evidence showed that Fa t her wa s i nc arcerate d for most of J.A.B. ’ s life and a consid erabl e p art of J .B. ’ s life ; that Father repeatedly engaged in illegal conduct including use, possession , and delivery of controlled su bstances such as Promethazine and methamp hetamine ; that Father ’ s s erial in carcerat ion s caused him to be absent f or much of the children ’ s li ves ; that even during the times Father wa s not incarcerated he was inconsistent in visiti ng J.B. and J.A.B

. ; and that Father allowed J.B. and J.A.B. to s tay with Tammy desp ite th e De pa rtme n t ’ s order that they not be with her because of her extensive c riminal and Dep artment history. The children ’ s thera pist Robin Be auregard testified that both J.B. and J.A.B. suffered from PTSD as a result of trauma experienced in the ir l ives r elat ed to th e i nstabili ty of their living conditions. Th e trial court could reasonably have determine d that F ather ’ s repea ted crimi nal activity and inc arcerations contri buted to this trauma. Father himse lf testified that he understo od that his invo lvemen t wi th drug s en dangers the childr en ’ s stability and security and that th e loss of security and stability can cause emotional or psychological harm.10 Viewing the evid ence in the light most favo rable to th e trial court ’ s finding, we

con clude tha t a re asonab le f actfinder c ould for m “ a firm b elief or c onviction ” that Father engaged in con duct that endan gered J.B. ’ s and J.A.B

. ’ s physical or emo tional well

- being. See Tex. Fam. Code § 161.001(b)( 1 ) ( E )

. Furthermor e, there was no sign ificant disputed evidenc e tha t wo uld rende r such fin ding un reas ona ble. S ee In re J.F.C. , 96 S.W.3d at 266. Bec ause we have conc luded that the evidence was sufficient to support the trial court ’ s find ing under subsection ( E) , we need not ad d ress Father ’ s challenges to the trial court ’ s o ther pred ic ate find ings under subsection ( D) or (O). Se e In re N.G. , 577 S .W.3d 230, 235, 239 (Tex. 2019) (per curiam) ( requiring appellate c ourts reviewing termi nation findings that are based on subsection ( D ) or (E) to ensure that evidence is s uffic ient to suppo rt at leas t one of th ose t w o grounds because finding under either could be used in future proceedings to terminate pare n t ’ s rights to other children); A.C. , 577 S.W. 3d at 698

- 99 & n.2 (noting t hat when appellant challenges both subsection (D) and (E) findings, appel late court needs to ensure that evidence is sufficient to support one of those ground s); see also Tex. Fam. Code § 161.001 (b)( 1 )(M) ( “ T he court may o rder

term in ati on of the parent

- ch i ld relationship if th e court finds by clear an d convincing evide nce that th e parent has had his or her parent

- child relationship terminated with respect to another child based on a finding that the parent ’ s conduct wa s in viol ation o f P aragraph (D) or (E)

. ” ).

Mother ’ s a nd Father ’

s Challenge to Be st Interest Finding
Mother as serts that the evidence is legall y and factually insuf ficient to support the trial co urt ’ s fi nding that ter minat ion of her parental rights is in the chil dren ’ s bes t interest , and Father asserts a factu al sufficiency challe nge to this finding. The best

- int erest prong of the termination statute “ is child

- centered and fo cuses on the child ’ s well

- being, s af ety, and d evelopment. ” In re A.C. , 560 S.W.3d 624, 631 (Tex. 2018). Wh en d eci ding the best

- inter es t11

issue , we consider the well

- established Holley v. Ad a m s factors, which include t he child ’ s wishes, the child ’ s emotional and physical needs now and in the future, emotio nal or ph ysical dan ge r to the child now and in the futu re , th e parenting abiliti es of the parties seeking custody,
prog rams available to help t hose par ties, plans for the child by the parties seeking cus tody, the stability of the proposed placement, the parent ’ s co nduct i ndicating that the parent

- chil d rel atio ns hip is imp roper, and any exc uses fo r the parent ’ s conduct. See 544 S.W.2d 367, 371

- 72 (Tex. 1976); see also In re A.C. , 560 S.W.3d at 631; In re E.N.C. , 384 S.W.3d 796, 807 (Tex. 2012) ; I n re C.H. , 89 S.W. 3d 17, 27 ( Tex. 2002). The Department need not pr ove all the H ol ley factors a s a “ condition precedent ” to t ermination, and the absenc e of evidence of some factors does not bar the factfinder from finding by clear and convincing evidence that termi nation of
pare ntal rights is in a chi ld ’ s best int er est. In r e C.H. , 89 S.W.3d at 2 7; Spurck v. Texas Dep ’ t of Family & Protective Servs. , 39 6 S.W.3d 205, 222 (Tex. App.

— Austin 20 13 , no pet.).

The children ’ s wishes

The children ’ s therapist , Robin Beaur egard, tes tified that J.B. and J.A. B. both love Moth er a nd wo uld cho ose to live with her. She stated that n either of the children ment ions
Fa ther very often at all. Beauregard testified that the children e njoy their visi ts with Mother if they are supervised and ar e excited to describe what happened d uring the vi si ts. Beauregard testifi ed t hat J .B. and J. A.B. have also expres sed that they want to stay in their foster pl aceme nt and continue to visit with Mother on a regular ba sis. Beauregard stated that t he children exp ress ed that if Mother made c ertain ch ange s , th e y would “ want to go back to live with her if they k new it would be that certain wa y. ” Beauregard stat ed that it is not un usual for children from abusive situation s to express a desire to be with a parent even i f the parent was neglectful and abu s ive

. Dan ielle Hensen, the CASA volun te er assigned to the case , testified that the ch i ldre n love their12

mother but “ struggle with the bond. ” Henson stated that J.B. tends to keep some distance f rom Mother during visits.

T he children ’ s current and future e m oti o nal and ph ysical needs

The tes timony regarding J. B. ’ s and J.A.B. ’ s physical and emo t ional needs principally focused o n the need for stability so they could conti nue to process the traum a they had experienced and lear n metho ds to cope with the ir beh a vior a l is sues. One of the reasons

se veral placements fai led was th at J.B. demonstrated ag gressive behavior and severe “ me l t downs ”

ac compan ied by screa ming and hitting his mother and J.A.B. Department case s upervisor Melissa Fabian testified that both J

. B. a n d J. A.B. suffer from PT SD and th at when J.B. and J.A.B. were able to remain in one pl acem ent with routine and clear expectations, they were ab le to work through their trau ma and b e havioral problems. She e xpressed concern about the possib ility that f

u ture plac ements could fail and th e toll that would take on J. B. and J.A.B. Fabian testifie d tha t th e children have been through a lot and that con tinu ing to move from place to place would be detr i mental to their well

- being. Fabian stated that the instabi lity , abus e , an d

n eglect the children h ad experienced hav e compounded to the poin t where bo th children will need long term support and therapy that she di d not belie ve either M o the r or Father could
pro vide . In her view, th e stability that terminati ng Moth er ’ s and F ath er ’ s parental rights wo ul d provide would be in the children ’ s best interest.

Beauregard testified that J.B. wa nted his t herapy sessions with her to focus on how to deal with unsettling memories of living wit h Mother and how to dev elop approp r iat e

co pi ng skil ls. Beauregard sta ted that J. B. need ed to learn that the mistakes Mot her and Fat her made were not his fau lt or his respo nsibility. Beaur egard emphasi zed the importance of routine and st ructure to chil dre n with PTSD, as well as the import ance of re dir e cti on to address13

aggre ssion and outbursts. Beauregard testifie d that J.B. ha d assumed a caretaker role of J.A.B. and needs t o l earn to let that go and understand that the foster parents will take care of J. A .B. Beauregard als o stated that J .B. a nd J.A .B . ne ed to be allowed to “ be kids ” and to be involved in sports

. Wit h regard to J.A.B., Beauregard testified that he needed stability to process memories that bother him and to l earn to play without b eing overly physical.

Hanse n, the CASA ca sewor ker , t es tifi ed that J .B. and J.A.B. need parents who und erstand that their behaviors ar e the re sult of trauma they have experienced and who know how to address those behaviors in a way that makes the childr en feel safe and protected. Hansen opined th at it wo uld b e be st for t he children to be the only children in the home because the y need a lot of focus and attention paid to them. Hansen also stre ssed the need f or the children to be in a stable livi ng envir o nment. Mallor y Ladny, a Departme nt casework er assig ne d t o th e case i n March 2019, also testified that J.B. and J.A.B. need a permanent home after ha ving been moved so many times.

Emo t ional and physical danger to the childr en now and in the future

No evidenc e was presented that J.B. and J. A.B. w e re cur re nt ly in a ny ph ysical d anger or that , if they were returned to their pare nts, they w ould be in the future. Ample and consistent testimony was presented that Mother and Fat her act appropri ately with the children

a nd that M other in particular is very l o vin g an d car i ng during visits

. Add itionally, the children ’ s therapist, caseworker , and CASA volunt e er all testified that the chi ldren are safe and doing w ell in their current foster placement. Beau reg ar d testified that the current foster placement is sta ble and has h elped J.B. improve his behav iors. In that placem ent J.B. is healing and de v eloping better copin g skills. Bea uregard stated that J.A.B. feels safe where h e is and h a s been working

on ov ercoming trouble sleeping and bed wetting. The struct ure an d ro u tine of the current foster14

family has also helped J. A.B. succe ed at school

. Han sen testified that , after a transi tion period, J.B. and J.A.B. are doing well in the ir current foster placem e nt. She stated that the foster parents are warm and cle ar and c on cr e t e about what is r equired of the children and that they joke an d play with the m.

The main concern expres sed by the Department ’ s witnes ses at trial was the potential for future emotiona l harm to the children if the y continue to be exposed to uns table
h om e environments and do not have the structure and routine that is currently help ing them to process the trauma they have expe rienced. Fa bian testif ied that Mother ’ s history of relapsing
i n to drug use creates the potential for more emotional har m t o J. B

. an d J. A.B. in the future. She also expressed conc ern that if the children were p laced in a foster home without suf ficient

resources the placement cou ld be unsuccessfu l and the children would have to be mo ved again, which would be more det r ime nta l t han hav ing t hem r emain in the current successful foster placement in Lometa. F a bian tes tified that the risk of further d isruptions in the c hildren ’ s l ives

wou ld be harmful to their emotional health.
Placement proposed by parents

Neither M o ther nor F at h er aske d tha t t h e court retur n J.B. and J.A.B. to their care. Both asked that their pare ntal rights not be terminated and that J.B. and J.A.B. live with Sandra, Fath er ’ s second c ousin . Sandra w a s identified as a potential relat ive placement in th e mon th o r

so pr eceding trial. Sandra , who is twelve years older than Father, testif ie d that she raised him as a child and that she had contact with J.B. and J.A.B. when t hey were babies. Sand ra te stified that she was not aware of the circumstances of th e cas e a n d did n ot know Mother well at all, but that she wanted to do whatever she could to h elp Father and ensure that J.B. and J.A.B. were placed with a relat ive. Father testified that he und erstood that if J.B. and J.A.B. were pla ced with a15

r elat ive, t he ch ildr en woul d risk exposure to member s of the family who wo uld negative ly
inf luence him and t he children. Father stated that he would ad dr ess this by spending ti me with those family mem bers “ on his own ” rather than at fa m ily gathering s. Fat her testif i ed t hat he
want s J.B. and J.A.B. to be with his family and that he would “ av oid the conflict. ” Mother

te sti fi ed that she does not know Sandra but would prefer that the children be with family r a ther than non - family.

T he D e partme nt completed a ho me study for San d ra a nd , although the placement was conditionally approved, De par t me nt witnes ses testifi ed about concerns they had t hat would need to be ad dressed before they cou ld recommen d that the children be placed in Sandra ’ s home.
F a bian testified tha t Sandra w ould need a lot of support to meet the chi ldren ’ s needs. Fabian noted that Sandra has four c hildren of her own living with her and would need fi nancial

ass istance to adequ ately care for J.B. and J.A.B. Fabian testified that adopt io n by Sandra would be the on ly way t hat such financial assistance would be available. Hansen expressed concern becau se Sandra had told her that her plan was to have her seventee n - year - old dau ghte r take care of her younger two children while she focused on J.B. and J.A.B. Hansen tes ti fied t hat she was concerned about this arrangem ent

. Sandra also told Hansen that her d au ghter planned to enter the military within the next year. H ansen echoed the concern about Sandra ’ s fi nancial ability to

care for six chil dren as well as concern tha t one of Sandra ’ s older child ren was on probation for cri minal activit y .

The Department ’ s witnesses testified that while they would continue to consider Sandra as a placement if their concerns could be alle viated, they would s till recommend terminati n g M o t her ’ s and Fath er ’ s parental rights so that Sandra could rec eive necessary financial ass is tance and so t h at if the placem ent was unsuitab le, the De par tment could act16

quickly to find a n alternative for J. B. and J.A.B. During her testi mony San dra acknow led ge d tha t ad o pting the ch ildren would be the best alternative for her because of the avail ability of financial assistance . Sand ra also stated that she unders tood th e Department ’ s pos ition that termination of parental r ights made sense so that if placeme nt w ith h er d id not work out , the Department could act quickly to place the children else whe re.

Ladny summari zed the reason s the Dep artment believed termi nation of Mother ’ s and Father ’ s parent al rights to be in t he children ’ s bes t i nter est. She tes tifie d t h at th e De partment had hear d from other r elatives that they would be willing t o adopt the children if parental rights were termin ated but would not be a placement for the children o therwise. Th us, termination of parental rights would open up more optio ns f or a re la tive placement. Ladny testified that adoption also opens up possibilities for financial assistance for J.B. and J.A.B. that they would not otherwise have. Ladny stated t hat not terminating Mother ’ s and Father ’ s parental rights limits the Dep art m ent ’ s o pt ions a nd ties i ts hands in terms of its ability to further explo re placements t hat would be best for J.B. and J.A.B. Hansen testified that , while not seeing Mother and Fat her in the future would be harmful for them, J. B. and J.A.B. would suff er mo re t ra um a if

t hey continued to have a relation ship wi th M other. Hansen testified that this opinion was based on the fact that Mother, desp ite hav ing participated in all the recomm ended services, continues to
enga ge in the same ch oi ce s that traumatize d t he chi ld re n and brought the m into t he Department ’ s

care . Hansen testified th at her recom mendation was to t erminate Mother ’ s and Father ’ s parental rights, ha ve the children remain in their current foster placement, and explore whether adoption by a rela t iv e or b y th e f

oster parents was the better option.
Th e common them e to the Department ’ s witne sses was tha t t hree years of working to reunify M o ther with J.B. and J.A.B. had failed b ecause each time reunification17

was imminent, Mother relapsed into drug use . Mot he r ’ s therapist , Curtis Laurence, testified that although Mother has p eriods of sob riety, she strugg les with periods of relapse. Laurence expressed concern about w h ether M other can maintain the positive changes she has made and whether she can ma int ai n so b r ie ty . Laurence expressed no concer n abou t Mother ’ s parenting abilities but testi fied that , although she had work ed h ard, it would be difficult for Mother to change beha viors such as drug use an d criminal activity that are harmful to her and to her

c hild re n. Fabian testified that she believed the Department ’ s effor ts at reunification had ultimately made the children ’ s situati on worse because it had exposed them to a long er period of instability.

Viewing the evidence in the l ight most favorable to t he t ri al court ’ s finding, we

co nclude that a reasonable factfinder could form “ a firm b elief or conviction ” that termi nation of Mother ’ s and Fat her ’ s parental rights was in J. B. ’ s and J.A.B. ’ s best interest . A f te r considering the disputed evidence , w e c on clud e th at a reasonable fact finder could have resolved that evidence in fa vor of the fi nd ing and that it is not so significant tha t a reasonable fact finder could not have form ed a firm conviction or belief that t ermination of Mother ’ s and F ather ’ s par ent al rig ht s was in J.B. ’ s and J.A. B. ’ s best i nter e st. After con sideration of the Holley fa ctors an d th e evidence presented to the court, we con clude that the evidence is legally a nd factually sufficient to support the court ’ s findin g that the best intere st of the c hi ldren will be served by t erminating Mother ’ s and Father ’ s parent al rights.

CON CLU SION

For the reason s stated in this opinion, we overrul e Mother ’ s issue challenging the trial court ’ s finding that termination of her parental rights is in J.B

. ’ s a n d J

. A .B

. ’ s best interest. We also overrul e Father ’ s issues challenging the court ’ s fi nding that he engaged in conduct that endangered J.B. ’ s and J.A.B. ’ s p hysi cal or emotional w ell

- being and that termination18

of his parental rights is in the chi ldren ’ s best i nt er est

. Consequently, we affirm the trial court ’ s order of termination

.

_______ ___________________________________ T homas J. Ba ke r , J usti ce Before Chief Justic e Rose, Justices Baker and Triana Affirmed Filed : May 6, 2020