COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00137-CV

In the Interest of B.R., B.R., and 

B.E.R., Children

§

§

§

§

From the 30th District Court

of Wichita County (11750-JR-A)

January 4, 2013

Opinion by Justice Gardner

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court‘s judgment. It is ordered that the judgment of 

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________________________________

 Justice Anne Gardner
2

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00137-CV

IN THE INTEREST OF B.R., B.R., 

AND B.E.R., CHILDREN

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellants B.E.R. (Father) and C.R. (Mother) appeal the trial court‘s 

judgment terminating their parental rights to their three children: Bethany, 

Brittany, and Brandon.2 In three issues, Father argues that the evidence is 

 

1See Tex. R. App. P. 47.4.

2We use aliases for all children named in our opinion to protect their 

identities. See Tex. R. App. P. 9.8(b)(2).
3

factually insufficient to support the jury‘s findings on statutory endangerment and 

the children‘s best interest. Mother argues in one issue that the evidence is 

legally and factually insufficient to support the jury‘s best interest finding. We 

affirm.

II. Background

Mother and Father have five children: Blake, Bradley, Bethany, Brittany, 

and Brandon.3 Bethany, Brittany, and Brandon were deposed in July 2011 and 

again in 2012. At the time of the 2012 depositions, Bethany was thirteen, 

Brittany was twelve, and Brandon was ten.

Trial was in March 2012, and the children‘s 2012 depositions were played 

for the jury. Bethany testified that there had always been some sort of violence 

between her parents. Bethany testified that she saw Father hit Mother, that there 

were times when she could not see Father hit Mother but heard punching 

sounds, and that Mother also hit Father. She testified that she was scared when 

her parents fought and that she was afraid that Father would take their 

arguments out on her. She also testified that she felt like her parents did not love 

each other when they fought.

Brittany testified that Father hit Mother and that she went to her room when 

her parents fought.4 She testified that she had heard Mother cry when Father hit 

 

3Only Bethany, Brittany, and Brandon are involved in this appeal.

4Bethany and Brittany testified that when they used the term ―fighting,‖ it 

included hitting.
4

her and that Mother had told her that she hit Father. She also testified that it was 

scary when her parents fought and that she was afraid that she or her siblings 

would get hurt. Brandon testified that he saw Father hit Mother several times. 

He testified that he went to his room but that he still heard slapping sounds and 

Mother crying. Brandon testified that he was scared that Mother would get really 

hurt. He also testified that he saw Mother hit Father.

In October 2009, the Department of Family and Protective Services (the 

Department) removed Bethany, Brittany, Brandon, and Bradley after the police 

and SWAT team arrested Father for assault family violence. Police records 

admitted at trial indicated that Bradley asked his girlfriend to call the police 

because he heard what sounded like Mother being hit and choked. The records 

further indicated that when police arrived at Mother and Father‘s home, all of the 

lights were off, and no one answered the door. Father testified that after the 

second doorbell ring, he looked out his window and saw a police officer in his 

yard. Father also testified that he and Mother decided that the police were there 

to arrest Mother.5 Father testified that he ―did not have a need to open up the 

door‖ and that he went back to bed.6 Father testified that Mother then heard 

 

5

Father testified that he thought the police were there to arrest Mother 

because she had been to jail twice before.

6When asked if he went to bed thinking that there was a police officer 

hiding behind the bushes in his front yard, Father replied, ―Absolutely.‖
5

police call his name and that he got out of bed and went outside. Father was 

arrested when he exited the home.

Several officers reported that they observed red marks on the right side of 

Mother‘s neck and a bruise on her mouth that appeared to be covered with 

make-up. Mother testified that she did not have any bruises. The police reports 

stated that Mother was uncooperative, insisted that no one had been assaulted, 

refused to allow police to photograph her, and expressed her hatred of police. 

Father testified that he did not assault Mother.

After the removal, the trial court ordered the Department to return Bethany, 

Brittany, and Brandon to Mother through a six-month monitored return.7 Father 

testified that he was ordered to leave the home during the monitored return and 

that he lived with his mother, M.R., for three months and then lived alone in an 

apartment for three months.8 Mother testified that she knew Father was not 

allowed contact with the children, but she allowed the children to make videos on 

her phone that she sent to Father. Bethany and Brittany testified that Mother 

took them to see Father during the monitored return and told them not to tell 

anyone, but Mother disputed that testimony. Bethany, Brittany, and Brandon 

testified that no one was hit or choked, that there was not much screaming and 

 

7Mother testified that she agreed to allow Bradley to remain in the 

permanent custody of the Department.

8

Father testified that he did not work during that time and that M.R. and 

Mother paid his bills.
6

yelling, and that things were better in their home when Father did not live with 

them. Father testified that he returned to the home in May 2010.

Mother testified that she left Father in September 2010 to have an affair 

with a woman who she worked with.

9

 She testified that she told her girlfriend that 

she left Father because she did not want to argue with him anymore. Bethany 

testified that Mother left because she was tired of Father hitting her. The children 

remained in the home with Father while Mother was gone from September until 

October 2010. Mother testified that Father did not work while she was gone and 

that she left less than $1,000 in a bank account for Father to use to support the 

children.10

Mother testified that she stayed in a hotel and then went to First Step, a 

battered woman‘s shelter. She testified that she went to First Step for shelter, 

not for the services they provide. The police were dispatched to First Step in 

September 2010. Mother told police she was staying at First Step due to 

domestic violence issues involving Father and that Father had followed her from 

Wal-Mart to First Step. According to the police report, Mother yelled at Father to 

leave her alone, and he continued to approach Mother even after police ordered 

him to stop. The police then pointed a gun at Father and ordered him back to his 

vehicle. The report also stated that Father had a knife in his front pocket and a 

 

9Mother testified that this was her second affair but her first homosexual 

relationship.

10Mother testified that she supported herself with her paycheck.
7

metal baseball bat in his vehicle. Mother denied that she yelled at Father and 

testified that she did not see a knife or baseball bat or the police point a gun at 

Father. Mother also testified that she was not concerned when Father followed 

her to First Step.

In October 2010, Bethany told her school counselor that Father had ―ʻkind 

of‘ choked her,‖ and the Department again removed the children from the home. 

Bethany testified that she also told her school counselor that she was afraid of 

Father and that Father was physical with her. Father testified that when 

Department investigators came to his house, he would not allow them to speak to 

his children unless he was in the room. He also testified that he told the children 

not to talk to the Department unless he was present and that he instructed them 

to call him if the Department came to their school. Father testified that he took 

the Fifth Amendment multiple times at the adversary hearing when asked about 

hitting and choking his children. He testified that he was then ordered to have no 

further contact with the children.

Mother testified that she and Father agreed that the children were not to 

associate with friends outside of school if Mother and Father were not present. 

Mother testified that they did not allow the children to stay overnight at a friend‘s 

house, have friends visit the home, attend birthday parties, talk on the telephone 

unless it was to a family member, or go anywhere without Mother and Father 

watching them. Father testified that he did not allow the children to answer the 

door at his house, play in the front yard, or play with friends unless he could see 
8

them. Bethany testified that her parents only allowed her to answer the door for 

her brothers and that she was not allowed to answer the door for the police. She 

testified that she had never been to a birthday party and that she had never had 

a friend visit her house. Bethany testified that she did not have a life outside her 

parents‘ home and that she and her siblings were kept in isolation when they 

were not in school. Brittany testified that Father would not allow her to spend the 

night at a friend‘s house, talk on the phone to friends, or answer the door at their 

house.

Bethany acknowledged that her 2011 and 2012 testimonies differed and 

that she did not tell the truth in her 2011 deposition.11 In her 2011 deposition, 

Bethany stated that Father hit her only in August 2010, but she stated in her 

2012 deposition that Father also hit her in September and October 2010 and that 

he hit her before Mother left in September 2010. She also testified during the 

2012 deposition that she did not know how many times Father had hit her 

because he hit her ―all the time.‖ During the 2011 deposition Bethany testified 

that Father had choked her twice, but she testified in 2012 that Father had 

actually choked her over five times. Bethany also testified in 2012 that Father 

had choked, punched, and slapped her in the face, stomach, arm, and back. 

She testified that Father told her it was her fault that he had to choke her, that 

Father had choked her because she smiled at a boy in the grocery store, and 

 

11Bethany suggested that she was untruthful in her first deposition because 

she did not remember or did not want to remember.
9

that he had never apologized to her for hurting her.12 Father testified that he was 

upset with Bethany when she winked and smiled at a boy in the grocery store, 

but he denied assaulting her. Bethany also testified that she saw Father hit 

every one of her family members and that Father hit her more than the other 

children, that she and Father had argued almost nightly, and that Father had told 

her not to tell anyone about the arguments and fighting.

Brittany testified during her 2012 deposition that she saw Father hit 

Bethany and that he hit Bethany the most out of the three children.13 Brittany 

testified that she was reading a book while Father was talking and that he took 

the book out of her hand and hit her on the shoulder with it. She also testified 

that Father did not want her to tell people what happened in their home and that 

he told her, ―[W]hatever is in this house stays in the house.‖

Brandon testified that Father tried to spank him because he did not clean 

his room. He testified that when he tried to avoid the spanking, Father threw him 

on the couch and choked him with both hands. Brandon testified that he could 

not breathe when Father choked him and that it hurt and scared him. He testified 

that Father had not apologized for choking him. Brandon also testified that he 

saw Father hit Bethany and choke his oldest brother Blake.

 

12Bethany testified during the 2011 deposition that she remembered 

smiling at a boy but did not remember that Father choked her.

13Brittany acknowledged that she testified in 2011 that she had not seen 

Father hit Bethany.
10

Bethany testified that she first disclosed that Father checked her to see if 

she was having sex in September 2011. Bethany and Brittany each testified that 

Father told them to come into his bedroom, remove their pants and underwear, 

and lie down on his bed.14 They testified that Father told them to spread their 

legs and that Father then looked at their private areas below their waists.15 

Bethany testified that Father told her he checked her because he thought she did 

something with a boyfriend, and Brittany testified that Father told her he checked 

her to see if she had sex with a boy.

Bethany testified that Father first checked her when she was ten and that 

he checked her twice a month. Brittany testified that she was in elementary 

school when Father first checked her and that she did not remember how often 

he checked her. She testified that she initially told CPS that Father did not check 

her because she was embarrassed and afraid that Father would find out if she 

told the truth. Brittany testified that Father told her not to tell anyone that he 

checked her. She testified that she did not ask Father to stop checking her 

because she was afraid to make him angry.

 

14Brittany testified that Father checked her and Bethany separately and 

that she did not remember if Bethany was in the room when she was checked. 

Bethany testified that she saw Father check Brittany twice a month.

15Bethany and Brittany each affirmatively answered questions that their 

private area is the part on their body below their belly button and above their 

knee.
11

Father denied checking Bethany and Brittany. He testified that he talked to 

Bethany about sex when she was nine and that he asked her if she was having 

sex when she was eleven and when she was twelve, but he testified that she 

denied having sex both times. Bethany testified that she was not having sex. 

She also testified that Father wanted to put her on birth control when she was ten 

because he was afraid she would get pregnant. Father testified that he asked 

Brittany about sex when she was ten and that he asked her when she was 

eleven if she was having sex. Brittany testified that she told Father she was not 

having sex but that he did not believe her.

Father testified that he had not worked since February 2011 and had not 

applied for a job since May 2011. He testified that he worked for the Electra 

Police Department from 1994 until 1995 and then worked for the Forest Hill 

Police Department from 1995 until 1999.16 He testified that the Forest Hill Police 

Department fired him in 1999. On June 4, 1999, the Forest Hill Police 

Department placed Father on indefinite suspension for employee misconduct. 

The indefinite suspension letter stated that Father had confronted Arlington 

police officers on November 14, 1998, attempted to influence them in Mother‘s 

 

16Father testified that he was an employee with the Electra Police 

Department starting in the summer of 1995 after first serving as a volunteer 

reserve employee.
12

arrest, and was untruthful to the internal investigating officer concerning the 

incident.17 Father denied having done so.

The jury heard other evidence of Father‘s disciplinary history at the Forest 

Hill Police Department. When a tow truck driver attempted to repossess Father‘s 

vehicle, Father approached the driver and threatened to shoot him. The 

Arlington police arrived, and Father displayed his weapon and identified himself 

as a Forest Hill police officer. On a separate occasion, an Aaron‘s Rental 

employee attempted to repossess Father‘s personal property, and Father 

became physical with the employee.18 Father also had five other disciplinary 

incidents while working for Forest Hill Police Department.

Father testified that he had not tried to obtain another law enforcement job 

and that he was unemployed from 1999 until 2005 because he had problems 

with depression, anxiety, and headaches. He testified that he held various other 

jobs for a few months at a time but that he quit because they were either too 

stressful or not in a management position. Mother testified that Father had quit 

two jobs because she and Father believed the jobs were beneath his capabilities. 

Father testified that he did not feel well enough to get a job, but that he would

 

17Forest Hill Police Department did not seek disciplinary action for this 

incident because more than 180 days had elapsed since it occurred. Mother 

testified that the Arlington police lied about the incident.

18Father testified that he did not assault the Aaron‘s Rental employee but 

had a disagreement with him. He asked the employee to leave, but when the 

employee refused, Father ―exited [his] home and [the employee] was just in the 

way of the door.‖
13

have motivation to find a job if he got his children back. Father testified that in 

December 2010 he was court-ordered to obtain gainful employment and agreed 

that he had not come close to following that order. He testified that he had 

known about the trial since January 2012 and that he had not tried to get a job. 

He also testified that he had not tried to find a job because he suffered from 

major depression.

Father testified that he first went to Helen Farabee (MHMR), the local 

mental health center, in April 2001 and was diagnosed with Posttraumatic Stress 

Disorder and depression. Father testified that he met with Dr. Decena once 

every three months from 2001 until 2004. He testified that he stopped seeing Dr. 

Decena in 2004 and did not see another mental health professional until March 

2011. He testified that he went back to MHMR in March 2011 and saw Kevin 

Thompson once a week until November 2011.19 Father testified that he stopped 

seeing Thompson because he had completed the behavior plan Thompson had 

created to help him cope with depression. However, Thompson testified that he 

stopped seeing Father because the staff felt like Father humored them by going 

through the motions.

Father testified that he applied for social security benefits in August 2011

and that he listed major depression as his disability with a disability start date of

March 2011. He testified that his application for social security was denied. 

 

19Thompson testified that he is a Licensed Professional Counselor and a 

Licensed Professional of the Healing Arts.
14

Father also testified that he answered discovery in May 2011 and did not 

disclose that he suffered from depression and that he never asked CPS to get 

him help for his depression.

Father testified that he was arrested by the Arlington Police Department for 

harboring Mother, but he denied that he had harbored her. The Arlington Police 

Department‘s Arrest Warrant Affidavit states that on May 29, 1999, Father 

shouted at officers to get out of his home and that he aggressively approached 

an officer, grabbed his arms, and pushed him backwards. Father denied 

grabbing or struggling with the officer.

At the time of trial in March 2012, Mother was in Dawson State Jail serving 

a fourteen-month sentence for a probation violation.20 Mother had an extensive 

criminal history and testified that she had several charges and convictions for 

theft because she ―had a problem . . . [w]anting more than [she] really needed at 

the time.‖ She testified that she had served a previous fourteen-month sentence 

at Dawson State Jail. Mother could not recall all of her criminal charges and 

testified that she did not know how many times she had been charged with theft. 

She added that her criminal history did not contain convictions for acts of 

violence and that her convictions were mostly for theft. Mother testified that she 

wrote 298 bad checks totaling $27,000.

 

20Mother‘s initial charge was fraudulent use and possession of identifying 

information. Mother‘s probation was revoked because she committed a new theft 

by check offense while on probation.
15

Department caseworker Linda Johnson testified that she thought Mother 

was going to jail in December 2010 and that she developed Mother‘s service plan 

accordingly.21 Johnson testified that Mother complied with most of her service 

plan; Mother signed the HIPAA release, participated in available services in jail, 

summarized the parenting information sent to her in jail, and underwent a 

psychological evaluation. Mother testified that she took a parenting class but 

refused to discuss domestic violence because she felt that her parenting trainer 

was investigating her and trying to place criminal charges on her and Father. 

Mother also testified that there was no domestic violence in her home and that 

she would not discuss domestic violence. Johnson testified that the most 

important part of Mother‘s service plan was the requirement that she obtain and 

maintain safe housing that was free from domestic violence once she was 

released from jail.

Mother testified that she told Johnson that she had no intention of leaving 

Father. Johnson testified that she previously told Mother that the Department‘s 

position was that it would not return the children to her as long as she was living 

with Father. Mother testified that the Department indicated to her that it wanted 

her to end her marriage to Father and that she made it clear to the Department 

that she had no intention of ending her marriage. She then testified that Johnson 

never told her that she had to divorce Father but that Johnson had told her that 

 

21Mother did not go to jail until March 2011.
16

there could come a point when she would have to choose between her husband 

and her children, since the Department would have to remove the children from 

the family violence. Johnson testified that the only portion of Mother‘s service 

plan that she had not complied with was maintaining a home free from domestic 

violence. She testified that this noncompliance was enough to determine that 

Mother failed to comply with her service plan.

Johnson testified that she developed Father‘s service plan and discussed 

the plan with him in December 2010. Johnson testified that Father complied with 

parts of his service plan. Father complied with the law, refrained from committing 

illegal acts, had not allowed people with a criminal or drug lifestyle in his home, 

provided information on people living in his home to CPS for them to run 

background checks, completed parenting classes, and completed a 

psychological evaluation.22 However, Johnson testified that Father did not notify 

her of his change in phone number, did not keep in frequent telephone contact 

with her, and did not regularly meet with her. Johnson testified that Father did 

not complete a budget form or sign his MHMR release.23 She also testified that 

Father failed to obtain and maintain a legal source of income.

Johnson testified that she first heard of Father‘s extensive MHMR issues 

during trial. Johnson testified that she met with Father in April 2011 and that he 

 

22Johnson testified that Father‘s psychological evaluation from the previous 

case carried over and counted for the current case.

23Father testified that he did sign the release.
17

did not mention that he went to MHMR the previous month and did not disclose 

his major depressive or posttraumatic stress disorders. She testified that Father 

was to attend counseling with Dr. Vandehey and receive intense education in the 

effects of domestic violence on the family, but Father did not attend the 

sessions.24 She also testified that she first heard that Father saw Kevin 

Thompson during trial and that Thompson is not the court-ordered counselor 

mentioned in Father‘s service plan.

Father called Robert Campbell and Brian Brunker as character witnesses 

at trial. Robert Campbell, a family friend, testified that the children‘s relationship 

with their parents appeared normal. Campbell testified that when he spent time 

with the family he did not notice anything out of the ordinary and that the children 

had never alleged that anything had happened to them while in their parents‘ 

care. Campbell then admitted that he did not know the children‘s names or ages 

or which children were involved in the termination case. Campbell also testified 

that he was never around the children without Mother and Father present and 

that he had only been to their home around six times in the past twenty years.

Brian Brunker, a Wichita Falls police officer, testified that he lived next door 

to the family. Brunker testified that he had seen the children play in the backyard 

and that he had never observed anything unusual about their demeanor. He 

 

24Johnson testified that Father saw A.J. Madden in the previous case and 

that Father stated he did not like Madden. Johnson arranged for Father to see 

Dr. Vandehey, but when Father did not attend an appointment, Dr. Vandehey 

refused to see Father.
18

testified that the children had never approached him and claimed that their 

parents abused them and that he had never noticed any marks or cuts on the 

children that appeared to be the result of physical abuse. However, Brunker 

testified that the only conversations he had with the children were when they had 

asked permission to retrieve tennis balls from his backyard. Brunker testified that 

he did not know that Mother had written bad checks, that Father was indefinitely 

suspended by Forest Hill Police Department, what went on inside Father‘s 

household, or the specifics of the SWAT team incident. Brunker also testified 

that he did not have a close relationship with Bethany, Brittany, or Brandon and 

that he did not know much about Father.

Father testified that his biggest problem in the past was his overwhelming 

sense of loss but that he was now positive about the future and believed that his 

family was salvageable. Father testified that he felt that he and Mother could 

provide for the children emotionally and physically. He also testified that the 

children would have to become reaccustomed to the home environment and his 

rules.

Father testified that ―there [were] a lot of lies within [Bethany‘s] deposition.‖ 

He testified that all of the allegations against him were false and that he did not 

think this should be a termination case. He also testified that termination was not 

proper in a case where the parent routinely looked at female children‘s genitalia, 

beat and choked a child, or beat and choked the other parent. He further
19

testified that termination was not proper in a case where a parent routinely 

committed criminal behavior and had been sent to prison.

Mother testified that M.R. lived with Father and paid his bills and rent.

Father testified that M.R. was sixty-three, worked full-time, had stomach and lung 

cancer, and received chemotherapy treatments every two weeks. Father 

testified that M.R. will assist them when Mother is released from jail but that he 

had not made arrangements for where M.R. would live. He testified that he did 

not have a plan for living arrangements if his children came home with him.

Mother testified that she believed her family was salvageable. She 

testified that the way she parented was the correct way for her children and that

the children wanted more freedom and had ―ma[de] everything up.‖ She testified 

that Bradley fabricated the allegations of family violence that led to the first 

removal. She testified that Bethany and Brittany lied about Father checking them 

because they did not like the rules at home. She testified that she did not believe 

her daughters and did not believe that Father had ever checked them. Mother 

testified that she would deal with Bethany‘s and Brittany‘s allegations that Father 

checked them by going to counseling because she believed that Father never 

checked the children. Mother also testified that she was surprised that Brandon 

discussed violence between her and Father and between Father and Bethany.

Bethany, Brittany, and Brandon testified that they love and miss Mother. 

They also testified that they love Father even after everything he had done. 

Brittany and Bethany testified that they did not want to live with Father and that 
20

they did not feel safe living with him. They testified that they would live with 

Mother but that she would just go back to Father or would let them see Father. 

Bethany and Brittany testified that they wanted Mother‘s and Father‘s parental 

rights terminated. Brandon also testified that he did not want to live with Mother 

or Father.

Bethany testified that she felt that Mother began choosing Father over the 

children when he moved back in after the 2009 removal. She testified that she 

wished Mother would choose her over Father but that she did not think Mother 

ever would. Bethany testified that she did not think that Father would ever 

change. Bethany testified that she did not want to go home; that she wanted to 

be adopted; that she now participates in basketball, track, and volleyball; that she 

is happy in her current placement; and that she wants to live there permanently. 

She also testified that she understood that there was no guarantee that her 

current foster parents would adopt her but that she still wanted Mother‘s and 

Father‘s parental rights terminated. Brittany testified that she wants Mother‘s 

rights terminated partly because she kept going back to Father. She testified that 

she wanted Father‘s rights terminated because he was strict, because he hit 

people, and because she is afraid of him at times.

Johnson testified that the children‘s current foster parents want to adopt 

them as a sibling unit and that the Department intends for the children‘s current 

foster parents to adopt them if the parents‘ rights are terminated. CourtAppointed Special Advocate (CASA) Gary Cardwell testified that he had 
21

observed Bethany, Brittany, and Brandon in their current placement and that they 

appeared happy and well-adjusted. Cardwell testified that, in his opinion, it is in 

the children‘s best interest for Mother‘s and Father‘s parental rights to be 

terminated. Johnson also testified that it is in the children‘s best interest to have 

Mother‘s and Father‘s parental rights terminated and that it would impair the 

children‘s physical and emotional development if Mother or Father were 

appointed as managing conservator.

III. Standards of Review

In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights, 

privileges, duties, and powers normally existing between them, except the child‘s 

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith, 

685 S.W.2d 18, 20 (Tex. 1985). Consequently, ―[w]hen the State seeks to sever 

permanently the relationship between a parent and a child, it must first observe 

fundamentally fair procedures.‖ In re E.R., No. 11-0282, 2012 WL 2617604, at *1 

(Tex. July 6, 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 

1388, 1391–92 (1982)). We strictly scrutinize termination proceedings and 

strictly construe involuntary termination statutes in favor of the parent. Id.; 

Holick, 685 S.W.2d at 20–21.

Termination decisions must be supported by clear and convincing 

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a). 

Due process demands this heightened standard because ―[a] parental rights 
22

termination proceeding encumbers a value  ̳far more precious than any property 

right.‘‖ E.R., 2012 WL 2617604, at *1 (quoting Santosky, 455 U.S. at 758–59, 

102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re 

J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination 

and conservatorship). Evidence is clear and convincing if it ―will produce in the 

mind of the trier of fact a firm belief or conviction as to the truth of the allegations 

sought to be established.‖ Tex. Fam. Code Ann. § 101.007 (West 2008).

In proceedings to terminate the parent-child relationship brought under 

section 161.001 of the family code, the petitioner must establish one ground 

listed under subsection (1) of the statute and must also prove that termination is 

in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163 

S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may 

not be based solely on the best interest of the child as determined by the trier of 

fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); 

In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on 

reh‘g).

In evaluating the evidence for legal sufficiency in parental termination 

cases, we determine whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction that the challenged ground for 

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We 

review all the evidence in the light most favorable to the finding and judgment. 

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder 
23

could have done so. Id. We disregard all evidence that a reasonable factfinder 

could have disbelieved. Id. We consider undisputed evidence even if it is 

contrary to the finding. Id. That is, we consider evidence favorable to 

termination if a reasonable factfinder could, and we disregard contrary evidence 

unless a reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance 

and demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573, 

574. And even when credibility issues appear in the appellate record, we defer 

to the factfinder‘s determinations as long as they are not unreasonable. Id. at 

573.

In reviewing the evidence for factual sufficiency, we give due deference to 

the factfinder‘s findings and do not supplant the verdict with our own. In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire 

record, a factfinder could reasonably form a firm conviction or belief that the 

parent violated subsection (D), (E), or (O) of section 161.001(1) and that the 

termination of the parent-child relationship would be in the best interest of the 

child. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 

If, in light of the entire record, the disputed evidence that a reasonable factfinder 

could not have credited in favor of the finding is so significant that a factfinder 

could not reasonably have formed a firm belief or conviction in the truth of its 

finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
24

IV. Statutory Endangerment

Father argues in his first and second issues that the evidence is factually 

insufficient to support the jury‘s statutory endangerment findings.

A. Applicable Law

―Endanger‖ means to expose to loss or injury, to jeopardize. Boyd, 727 

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, 

no pet.). Under section 161.001(1)(D), it is necessary to examine the evidence 

related to the environment of the child to determine if the environment was the 

source of the endangerment to the child‘s physical or emotional well-being. 

J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an 

environment that endangers the physical and emotional well-being of a child. In 

re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For 

example, abusive or violent conduct by a parent or other resident of a child‘s 

home may produce an environment that endangers the physical or emotional 

well-being of a child. See id. at 776–77; Ziegler v. Tarrant Cnty. Child Welfare 

Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref‘d n.r.e.).

Under section 161.001(1)(E), the relevant inquiry is whether evidence 

exists that the endangerment of the children‘s physical well-being was the direct 

result of the parent‘s conduct, including acts, omissions, or failures to act. See 

J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). 

Additionally, termination under subsection (E) must be based on more than a 

single act or omission; the statute requires a voluntary, deliberate, and conscious 
25

course of conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. 

Code Ann. § 161.001(1)(E). It is not necessary, however, that the parent‘s 

conduct be directed at the children or that the children actually suffer injury. 

Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the 

children‘s well-being may be inferred from parental misconduct standing alone. 

Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort 

Worth 2004, pet. denied). As a general rule, conduct that subjects children to a 

life of uncertainty and instability endangers the children‘s physical and emotional 

well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, 

pet. denied).

B. Discussion

Father argues that his family violence did not endanger Bethany, Brittany, 

and Brandon but that it instead had ―a salutary effect‖ on them. He argues that 

there is no evidence that the children suffered any injuries other than transitory 

ones and that his discipline had no long-term, adverse effects on the children. 

The Department responds that there is ample evidence that Father endangered 

the children, and it points to evidence of Father‘s lengthy history of domestic 

violence. Specifically, the Department points to evidence that Father assaulted 

Mother on an ongoing basis, that the children witnessed the abuse, and that 

Father also assaulted the children, and it urges that Father‘s disciplinary 

techniques far exceeded the bounds of what society might describe as those 

employed by a strict parent.
26

There is also evidence that Father checked Bethany‘s and Brittany‘s 

genital areas for evidence of sexual activity. ―It is beyond question that sexual 

abuse is conduct that endangers a child‘s physical or emotional well-being.‖ In re 

R.G., 61 S.W.3d 661, 667 (Tex. App.—Waco 2001, no pet.), disapproved of on 

other grounds by J.F.C., 96 S.W.3d 256 (Tex. 2002); see also R.W., 129 S.W.3d 

at 742. Evidence of sexual abuse of one child is sufficient to support a finding of 

endangerment with respect to other children. See In re K.M.M., 993 S.W.2d 225, 

227 (Tex. App.—Eastland 1999, no pet.). Father argues that his actions did not 

cause his daughters physical harm, but he ignores the emotional or 

psychological impact of his conduct.

Overall, Father‘s arguments are little more than efforts to minimize the 

considerable evidence supporting the jury‘s endangerment findings. While the 

evidence is in many respects conflicting given his and Mother‘s denials at trial, 

the jury is the sole judge of the credibility of the witnesses and the weight to be 

given to their testimony. See J.P.B., 180 S.W.3d at 573; see also In re T.N., 180 

S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.) (―[T]he fact finder, as 

opposed to the reviewing body, enjoys the right to resolve credibility issues and 

conflicts within the evidence. It may freely choose to believe all, part, or none of 

the testimony espoused by any particular witness.‖). Contrary to Father‘s 

contentions, the jury could have determined that Father endangered Bethany, 

Brittany, and Brandon.
27

Applying the appropriate standards of review, we hold that the evidence is 

factually sufficient to support the jury‘s findings that Father engaged in conduct or 

knowingly placed Bethany, Brittany, and Brandon with persons who had engaged 

in conduct that endangered their physical or emotional well-being and that he 

knowingly placed or knowingly allowed Bethany, Brittany, and Brandon to remain 

in conditions or surroundings that endangered their physical or emotional wellbeing. See Tex. Fam. Code Ann. § 161.001(1)(D), (E); see also H.R.M., 209 

S.W.3d at 108. We thus overrule Father‘s first and second issues.25

V. Best Interest

Father argues in his third issue that the evidence is factually insufficient to 

support the jury‘s finding that termination of his parental rights is in the children‘s 

best interest. Mother argues in her sole issue that the evidence is legally and 

factually insufficient to support the jury‘s finding that termination of her parental 

rights is in the children‘s best interest. See Tex. Fam. Code Ann. § 161.001(2) 

(requiring clear and convincing evidence ―that termination is in the best interest of 

the child‖).

 

25Along with a best interest finding, a finding of only one ground alleged 

under section 161.001(1) is sufficient to support a judgment of termination. In re 

E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus 

need not address the sufficiency of the evidence under section 161.001(1)(O). 

See id.; see also Tex. R. App. P. 47.1.
28

A. Applicable Law

There is a strong presumption that keeping a child with a parent is in the 

child‘s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and 

permanent placement of the child in a safe environment is also presumed to be 

in the child‘s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). 

Nonexclusive factors that the trier of fact in a termination case may use in 

determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the 

future;

(C) the emotional and physical danger to the child now and in the 

future;

(D) the parental abilities of the individuals seeking custody; 

(E) the programs available to assist these individuals to promote 

the best interest of the child;

(F) the plans for the child by these individuals or by the agency 

seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the 

existing parent-child relationship is not a proper one; and

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

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted). 

These factors are not exhaustive; some listed factors may be inapplicable to 

some cases; other factors not on the list may also be considered when 
29

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just 

one factor may be sufficient in a particular case to support a finding that 

termination is in the best interest of the child. Id. On the other hand, the 

presence of scant evidence relevant to each factor will not support such a 

finding. Id.

B. Discussion

Father contends that his ―hands-on approach to family discipline‖ has not 

caused his children any substantial injuries. Father also contends that Bethany 

and Brittany have not suffered physically or mentally from the sexual inspections. 

Mother points to the strong presumption that keeping children with their parent is 

in the children‘s best interest, and she argues that she has always provided her 

children with a safe environment. Mother contends that her children have not 

suffered any physical harm, that there is no domestic violence in her home, and 

that Bethany lies and manipulates others. Mother further contends that while she 

does have a criminal history, she used the stolen money to provide for her family.

Exposure to domestic violence is relevant when considering a child‘s best 

interest. See In re R.R., Jr., 294 S.W.3d 213, 235 (Tex. App.—Fort Worth 2009, 

no pet.); In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). 

A parent‘s extensive criminal record also reflects on the best interest of the 

children in maintaining a relationship with that parent. See In re V.V., 349 

S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc); 

see also In re J.B.W., 99 S.W.3d 218, 229 (Tex. App.—Fort Worth 2003, pet. 
30

denied) (holding that incarceration is one factor courts can consider when 

determining the best interest of the children in a termination case). Moreover, a 

parent‘s noncompliance with a service plan may also affect a factfinder‘s 

consideration of the children‘s best interest. M.R., 243 S.W.3d at 821.

The jury heard that Bethany, Brittany, and Brandon love Mother and 

Father. But the jury also heard Bethany testify that she wants Mother‘s and 

Father‘s parental rights terminated, that she does not want to go home, and that 

she wants to be adopted. Brittany testified that she wants Mother‘s and Father‘s 

parental rights terminated, and Brandon testified that he does not want to live 

with Mother or Father. The jury heard evidence that the children appear happy 

and well-adjusted in their current placement, that their current foster parents want 

to adopt them, and that the Department intends for the children‘s current foster 

parents to adopt them if their parents‘ rights are terminated.

In contrast, the jury heard evidence that Father has choked, punched, and 

slapped the children and that he checked Bethany‘s and Brittany‘s genital areas 

for evidence of sexual activity. The children do not feel safe living with Father. 

Mother has a lengthy criminal history and was serving her second fourteenmonth sentence at the time of trial. Also, Mother has not acknowledged Father‘s 

domestic violence or abuse of the children and seems intent upon living with 

Father upon her release from jail. Mother and Father denied all allegations 

against them and argued that their children were lying.
31

The record contains evidence of Father‘s history of physical and sexual 

abuse and his pattern of denial and refusal to adjust his conduct, even when 

faced with the possibility of having his parental rights terminated. The record 

also reflects Mother‘s history of domestic violence directed at Father, her 

unwillingness to comply with her service plan, and her lengthy criminal history. 

Applying the appropriate standards of review, we hold that the evidence is 

factually sufficient to support the jury‘s finding that termination of Father‘s 

parental rights is in Bethany‘s, Brittany‘s, and Brandon‘s best interest. See 

H.R.M., 209 S.W.3d at 108 (discussing factual sufficiency standard of review). 

We also hold that the evidence is legally and factually sufficient to support the 

jury‘s finding that termination of Mother‘s parental rights is in the children‘s best 

interest. See id.; see also J.P.B., 180 S.W.3d at 573 (discussing legal sufficiency 

standard of review). We therefore overrule Father‘s third issue and Mother‘s sole 

issue.

VI. Conclusion

Having overruled Father‘s and Mother‘s respective dispositive issues, we 

affirm the trial court‘s judgment.

ANNE GARDNER

JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: January 4, 2013