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## NO. 12

- 22

- 00111 -CV
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN THE INTEREST OF
S. A. AND R.T.,
CHILDREN § § § APPEAL FROM THE
COUNTY COU RT AT LAW NO . 2
ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION S.T. appeals the termination of her parental rights an d argues that (1) there is no evidence or factually insufficient evidence to prove beyond a reasonable doubt that continued custody of R.T. by S.T. is likely to result in serious physical or emotional damage to R.T.; (2) there is factually insufficient evi dence to support a finding that termination of S.T.’s parental rights was in the best interest of the children; and (3) the trial court abused its discretion by finding that S.T.’s appointment as conservator would significantly impair the children’s physic al health or emoti onal development. We affirm

.

B ACKGROUND S.T. is the mother of S.A. and R.T

. S.A.’s father is L.A. 1 and R.T.’s father is D.T

. 2 On

1 At the conclusion of trial on the merits, the Associate Judge found, by clear and convincing evidence, that L.A. engaged in one or mor e of the acts or omissions necessary to support termination of his parenta l rights to S.A. under subsection (E) of Texas Famil y Code Section 161.001(b)(1). The Associate Judge also found that termination of the pare nt

- child relationship between L .A. and S.A. i s in the child’s best interest. Based on these findings, the Associate Judge o rd ered that the parent

- child relationship between L .A. and S.A. be terminated. L .A. is not a party to this appeal.

2 At the conclus ion of trial on the merits, the Associate Judge foun d , by clear and convincing evidence, that D.T. engaged in one or more of th e acts or omissions necessary to support termination of his parental rights under subsections (D) , (E) , and (O) of Texas Family C ode Section 161.001(b)(1). The Associate Judge found, be y on d a reasonable doubt, that (1) the Department made active efforts to pro vi de remedial services and rehabilitation programs designed to prevent the breakup of the Indian family and that these effort s proved unsuccessful , and (2) the evidence, including t e st imony of a qualified expert witness, demonstrates that the continued cus to dy of the child, R.T

. , by D.T. , the parent, is likely to result in serious emotional or physical damage to the child. The A ssociate2 February 26, 2021 , the Department of Family and Protective Services (the Department) filed an original petition for protection of S.A. and R.T., for conservatorship, and for termination of S.T.’s, L.A.’s , and D.T. ’s parental rights. The Department wa s ap pointed temporary manag ing conservator of the children, and the parents of each child w ere appointed temporar y possessory conservator with limited rights, duties, access, and possession. At the conclusion of trial on the merits, the Associate Judge fo und, by clear and convincin g evidence, that S.T. engaged in one or more of the acts or omissions necessary to sup port termination of her parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b)(1). The Associate Judge found tha t R. T. is an Indian Child w ithin the meaning of the Indian Child Welfare Act (ICWA). Additionally, t he Associate Judge found, beyond a reasonable doubt, that (1) the Department made active efforts to provide remedial services and rehabilitation programs de sign ed to prevent the breakup of the Indian family and that these efforts proved unsuccessful , and (2) the eviden ce, including testimony of a qualified expert witness, demonstrates that the continued custody of the child, R.T., by S.T., the parent, is like ly t o result in serious emo tional or physical damage to the child. The Associate Judge also found that termination of the par ent

- child relationship between S.T. , S.A., and R.T. is in the child ren ’s best interest. Based on these findings, the Associate Judg e ordered that the parent

child relatio nship between S.T. , S.A., and R.T., be terminated. S.T. appealed from the Associate J udge’s decision and requested a de novo hearing. After a de novo hearing, the presiding judge of the County C ourt at L aw of Angelin a County adopted the A ssociate Jud ge ’s report, and ordered that the A ssociate J udge’s order be adopted as an order of the cou rt. This appeal followed.

T ERMINATION OF P ARENTAL R IGHTS Involuntary termination of parental rights embodies fundamental constitutional rights. V

ela v. Marywood , 17 S .W.3d 750, 759 (Tex. App.

–Austin 2000), pet. denied per curiam , 53 S.W.3d 684 (Tex. 2001 ); In re J.J. , 911 S.W.2d 437, 439 (Tex. App.

– Texarkana 1995, writ denied). Because a termination action “permanently sunders” the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex.
Judge also found that termination of the parent

- child relations h ip between D.T. and R.T. is in the child’s best interest. Based on these f in dings, the Associate Judge ordered that the parent

- child relationship between D .T. and R.T. be terminated. D.T. is not a party to this appeal.3 1976); In re Shaw , 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.). Section 161.001 of the family code permits a court to or der termination of parental rights if two elements are established. T EX

. F AM

. C ODE A NN

. § 161.001 (West Supp. 202 2 ); In re J.M.T. , 39 S.W.3d 234, 237 (Tex. App.

– Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. T EX

. F AM

. C ODE A NN

. § 161.001(b)(1) (West 202 2 ); Green v. Tex. Dep’t of Pr otective & Regulatory Servs. , 25 S.W.3d 213, 219 (Tex. App.

– El Paso 2000, no pet.); In re J.M.T. , 39 S.W.3d at 237. Second, termin ation must be in the best interest of the child. T EX

. F AM

. C ODE A

NN

. § 161.001(b)(2) (West Supp. 202 2 ); In re J.M.T. , 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the pe titioner’s burden of proving the othe r. T EX

. F AM

. C ODE A NN

. § 161.001; Wiley , 543 S.W.2d at 351; In re J.M.T. , 39 S.W.3d at 237. The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. T EX

. F AM

. C ODE A NN

. § 161.001; In re J.J. , 911 S.W.2d at 439. Clear and convincing evidence means “the measure or degree of proo f that 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 es tablished.” T EX

. F AM

. C ODE A NN

. § 10 1.007 (West 2019). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T. , 39 S.W.3d at 240. Standard of Review When confronted with both a legal and factual sufficiency challenge, an appellat e court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co. , 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S. , 1 S.W.3d 190, 197 (Tex. App.

–Am arillo 1999, no pet.). In conducting a legal sufficiency review, we must look a t all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings we re true. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disre gard all evidence that a reasonable fact finder could have disbelie ved or found incredible. Id

. The appropriate standard for rev iewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could r easonably form a firm belief or conviction about the truth of the p etitioner’s allegations. In re C.H. , 89 S.W.3d 17, 25 (Tex.4 200 2). In determin ing whether the fact finder has met this standard, an appellate court considers all the evidence in the recor d, both that in support of and contrary to the trial court’s findin gs. Id

. at 27

- 29. Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C. , 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom , 965 S.W.2d 575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. d enied) Termination under Sections 16.001(b)(D) and (E) We note that S.T. does not challenge every ground upon which the fact finder could have base d its decision to terminate h er parental rights, specifically subsection s (D ) and (E) . We previously have required a parent to challenge all grounds of termination before we addressed any of the grounds. See In re A.V. , 113 S.W.3d 355, 361

– 62 (Tex. 2003); Fletcher v. Dep ’ t of Family & Protective Servs. , 277 S.W.3d 58, 64 (Tex. App.

– Houston [1st Dist.] 2009, no pe t.). However, the Texas Supreme Court held that allowing Section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when t he parent has pr esented the issue to the court violates the parent ’ s due process and due course of law rights. In re N.G. , 577 S.W.3d 230, 237 (Tex. 2019). In making its holding, the Court relied on subsection (M), which provides that parental rights may b e terminated if clear and convincing evidence supports that the parent “had his or her parent

- child relationship terminated w ith respect to another child based on a finding that th e parent ’ s conduct was in violation of Paragraph (D) or (E).” Id. at 234; T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(M) (West 2022 ). As a result, the “collateral consequences of terminating parental rights un der [S]ection 161.001(b)(1)(D) or (E) are significant.” In re N.G. , 577 S.W.3d at 234. “When a parent has presented the issue on appeal, an appella te court that denies review of a [S]ection 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningfu l appeal and eliminates the parent ’ s only chance for review of a finding that will be binding as to parental rights to other childr en.” Id. at 235. Therefore, due process and due course of law requirements mandate that an appellate court detail its analysi s in an appeal of termination of parental rights under Section 161.001(b)(1)(D) or (E) of the Family Code if a parent raises such i ssues. Id. at 23 7. Accordingly, in light of the Supreme Court ’ s decision in In re N.G. , we will consider the legal and factual sufficiency o f the evidence to terminate S.T.’s parental rights pursuant to5 subsections (D) and (E) of Texas Family Code S ecti on 161.001(b)(1) , e ven though s he does not challenge termination under those subsections. Applicable Law The court may order termi nation of the parent -child relationship if the court finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well

- being of t he child. T EX

. F AM

. C ODE A NN . § 161.001(b)(1)(D) (West 202 2 ). Subsection (D) addresses the child’s surroundings and environment. In re N.R. , 101 S.W.3d 771, 775

- 76 (Tex. App.

— Texarkana 2003, no pet.). The child’s “environment” refers to the suitability of the child’s l iving conditions as well as the conduct of parents or others in the home. In re S.R. , 452 S.W.3d 351, 360 (Tex. App.

— Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine whether there is clear and convincing evidence of endangermen t is before the child was removed. Ybarra v. Tex. Dep’t of Human Servs. , 869 S.W.2d 574, 577 (Tex. App. —Corpus Chris ti 1993, no pet.). Further, subsection (D) permits termination based upon only a single act or omission. In re R.D. , 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied). The court may order termination of the parent

- child relationship if it finds by clear and

co nvincing evidence that the parent has engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangers the physical or emotional well being of the child. T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(E) (West 202 2) . Scienter is not required for an appellant’s own acts under Section 161.001(b)(1)(E), although it is required when a parent places her ch ild with others who engage in endangering acts. In re U.P. , 105 S.W.3d 222, 236 (Tex. App.— Houston [14th Dist.] 2003, pet. denied), overruled on other grounds, In re L.C.L. , 599 S.W.3d 79, 85

- 86 (Tex. App.

— Houston [14 th Dist.] 2020, pet. denied)

. Finally, the need for permanence is a paramount consideration for the child’s present and future physical and emotional nee ds. In re N.K. , 99 S.W.3d 295, 301 n.9 (Tex. App. —Texarkana 2003, no pet.); In re M.D.S. , 1 S.W.3d at 200. “Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human Svcs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); In re D.M. , 58 S.W.3d 801, 811 (Tex. App.

— Fort Worth 2001, no pet.). It is not necessary that the conduct be directed at the child or that the child actually suffers injury. Boyd , 727 S.W.2d at 533; In re J.J. , 911 S.W.2d at 440. When seeking termination under subsection ( D), the Department must show that the child’s living6 condit ions pose a real threat of injury or harm. In re N.R. , 101 S.W.3d at 776; Ybarra , 869 S.W.2d at 577. Further, there must be a connection between the conditions and the resulting danger to the child ’s emotional or physical well

- being. Ybarra , 869 S.W.2d at 577

- 78. It is sufficient that the parent was aware of the potential for d anger to the child in such environment and disregarded that risk. In re N.R. , 101 S.W.3d at 776. In other words , conduct tha t demonstrates awareness of an endangering environment is s ufficient to show endangerment. In re S.M.L. , 171 S.W.3d 472, 477 (Tex. A pp.

— Houston [14th Dist.] 2005, no pet.) , overruled on other grounds, In re L.C.L ., 599 S.W.3d

. at 86

- 86. We have previously concluded it is illogical to reason that inappropri ate, debauching, unlawful, or unnatural conduct of persons who live in t he home of a child, or with whom a child is compelled to associate on a r egular basis in his home, is not inherently a part of the “ conditions and surroundings” of that place or home. In re B.R. , 822 S.W.2d 103, 106 (Tex. App.

— Tyler 1991, writ denied). Sub section (D) is designed to protect a child from precisely such an environ ment. Id

. Subsection (E) requires us to look at the parent ’s conduct alone, including actions, omissions, or t he parent’s failure to act. In re D.J. , 100 S.W.3d 658, 662 (Tex. App.

— Dallas 2003, pet. denied); In re D.M. , 58 S.W.3d at 811. Termination unde r subsection (E) must be based on more than a single act or omission. In re D.M. , 58 S.W.3d at 812; In re D.T
. , 34 S.W.3d 625, 634 (Tex. App.

— Fort Worth 2000, pet. denied). A volunt ary, deliberate, and conscious “course of conduct” by the parent that end angers the child’s physical and emotional well being is req uired. In re D.M. , 58 S.W.3d at 812; In re D.T. , 34 S.W.3d at 634. As a general rule, conduct that subjects a child to a li fe of uncertainty and instability endangers the physical and emotional we ll being of a child. In re M.R.J.M. , 280 S.W.3d 494, 503 (T ex. App.

— Fort Worth 2009, no pet.); In re R.W. , 129 S.W.3d 732, 739 (Tex. App.

— Fort Worth 2004, pet. denied). E ndangering co nduct is not limited to actions direc ted towards the child. Boyd , 727 S.W .2d at 533

. It necessarily follows that the endangering co nduct may include the parent’ s actions before the ch ild’s birth and while the paren t had custody of older children

. See id. (stating that although endanger means more than a threat of metaphysical injury or the possible ill effects of a less

- than

- ideal fam ily environment, it i s not necessary that the parent ’ s conduct be directed at the child or that the child actually suffers i njury); see als o In re M.N.G. , 147 S.W.3d 521, 536 (Tex. App.

— F ort Worth 2004, pet. denied) (holding that courts may look to parenta l conduct both before and after child’ s birth to det ermine whether termination is7 appropriate). Further, t he conduct may occ ur before the child’s birth and both before and after the child has been removed by the Department

. Walker v. Tex. Dep’t of Family & Protective Srvs. , 312 S.W.3d 608, 617 (Tex. App.— Ho uston [1st Dist.] 2009, pet. denied). A parent ’ s use of narcotics and its effect on her ability to parent may qualify as an endangering course of conduct. In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009); se e also In re R.W. , 129 S.W.3d at 739. Further, evidence that the parent continued to use illegal drugs even though the parent knew her parental rights were in jeopardy is conduct showing a voluntar y, deliberate, and conscious course of conduct, which by it s nature, endangers a child ’ s well -being. See In re M.E.- M.N. , 342 S.W.3d 254, 263 (Tex. App. —F ort Worth 2011, pet. denied); Cervantes

- Peterson v. Tex. Dep ’ t of Family & Protective Servs. , 221 S.W.3d 244, 253

- 54 (Tex. App.— Houston [1st Dist.] 2006, no pet. ). Because it exposes the child to the possibility t hat the parent may be impaired or imprisoned, illegal drug use may support termination under subs ection (E)

. Walker , 312 S.W.3d at 617-18. Domes tic violence, want of self

- control, and propensity for viol ence may be considered as evidence of endangerment. In re T.R.L. , No. 10 -14-00290- CV, 2015 WL 1020865, at *5 (Tex. App.

– Waco Mar. 5, 2015, no pet.) (mem. op.); In re C.J.O. , 325 S.W.3d 261, 265 (Te x. App.– Eastland 2010, pet. denied) (holding domestic viole nce may be considered evidence of endangerment supporting findings under (D) and (E)). Criminal act s that also constitute domestic violence need not lead to indictment or conviction in order to be considered under the family code. In re R.S. , No. 01 -18-00058- CV, 2020 WL 3393069, at *8 (Tex. App.

– Houston [1s t Dist.] June 18, 2020, no pet.) (mem. op.). A court may consider a parent ’ s failure to complete a service plan as part of the endangering conduct analysis. In re M.B. , No. 02 -15-00128- CV, 2015 WL 4380868 , at *12 (Tex. App.

– Fort Worth July 16, 2015, no pet.) (mem. op.); In re T.H. , No. 07

- 07-00391- CV, 2008 WL 3351948, at *7

– 8 (Tex. App.

–Amarillo Aug. 12, 2008, no pet.) (mem. op.).

T ERMINATION U NDE R THE I NDIAN C HILD W ELFARE A CT (ICWA) In her first issue, S.T. argues that the evidence is legally and factually insufficient to prove beyond a reasonable doubt that continued custody of R.T. by S.T. is likely to result in serious physical or emotional damage to R.T. Burden of Proo f8 Subsection (f) of the Indian Ch ild Welfare Act (ICWA) provides “[n] o termination of parental rights may be ordered

. . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of t he child by the parent or Indian cus todian is likely to result in serious emotional or physical damage to the child. ” 25 U.S.C.A. § 1912(f) ( Westlaw current through PL 11 7

- 214 ). However, subsection (d) provides that a party seeking to terminate parental ri ghts “ shall satisfy the court that a ctive efforts hav e been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. ” See 25 U.S.C.A. § 1912(d) (West law current through P L 117

- 214 )

. Active efforts include, for example:

(1) Eng aging the Indian child, the Indian child ’ s parents, the Indian child ’ s extended family members, and the Indian child ’ s custodian(s); (2) Taking steps necessary to keep siblings togethe r; (3) Identifying appropriate services and helping the parents to overcome barriers, includin g actively assisting the parents in obtaining such services; (4) Identifying, notifying, and inviting representatives of the Indian child ’ s tribe t o participate; (5) Condu ctin g or causing to be conducted a diligent search for the Indian child ’ s extended family m embers for assistance and possible placement; (6) Taking into account the Indian child ’ s tribe ’ s prevailing social and cultural conditions and way of life, and requesti ng t he assistance of representatives designated by the Indian child ’ s tribe with substantia l knowledge of the prevailing social and cultural standards; (7) Offering and employing all available and culturally appropriate family preservatio n strategies; (8) Comple ting a comprehensive assessment of the circumstances of the Indian child ’ s family, with a f ocus on safe reunification as the most desirable goal; (9) Notifying and consulting with extended family members of the Indian child to provide fam ily structure a nd sup port for the Indian child, to assure cultural connections, and to serve as placement resour ces for the Indian child; (10) Making arrangements to provide family interaction in the most natural setting that can ensure the Indian child's safe ty during any n ecessa ry removal; (11) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child ’ s parents or extended family in utilizing and accessing those resou rces; (12) Monitoring progress and participation in services; (13) Providing consideration of alter native ways of addressing the needs of the Indian child ’ s9 parents and extended family, if services do not exist or if existing services are not available; (14) Sup portin g regular visits and trial home visits of the Indian child during any period of removal, co nsistent with the need to ensure the safety of the child; and (15) Providing post

- reunification services and monitoring.

See B UREAU OF I NDIAN A FFA IRS G UI DELINES FOR S T ATE C OURTS AND A GENCIES IN I NDIAN C HILD C USTODY P ROCEEDINGS , 80 F ED

. R EG

. 10146-02, 10150 (February 25, 2015 ). Standard of Review The beyond a reasonable doubt standard has traditionally been regarded as the dec isive difference betwe en criminal culpability and civil liability. Jackson v. Virginia , 443 U.S. 307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979) (citations omitted). When we review the sufficiency of the evidence pursuant to the ICWA burden of proof requirements, we mus t determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier o f fact could have found that the requirements of Section 1912(d) and (f) were satisfied beyond a reasonable doubt. See id. , 443 U.S. at 319, 99 S. Ct. at 2789; see a lso City of Keller v. Wilson , 168 S.W.3d 802, 817 (Tex. 2005) (legal sufficiency review of cases involving termination of parental rights requires the reviewing court to consider all of the evidence, not just evidence favoring the verdict). This standard g ives full play to the responsibility of the t rier of fact to fairly resolve conflicts in te stimony, weigh evidence, and draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319, 99 S. Ct. at 2789. S.T. ch allenges the factual sufficiency of the evidence supporting the ICWA grounds, but Texas no longer applies a fact ual sufficiency review to challenges of evidence requiring proof beyond a reasonable doubt. See Brooks v. State , 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (holding that factual sufficiency standard is indistin guishable from the Jackson v. Virginia legal

s ufficiency standard). Accordingly, we apply the Jackson v. Virginia standard in reviewing the sufficiency of the evidence supporting termination under the ICWA. In re K.S. , 448 S.W.3d 521, 539 (Tex. App.— Tyler 2014, pet. denied). Preventive Measures and E xpert Testimony Required When a state seeks to terminate the parental rights of an Indian child, it must prove beyond a reasonable doubt that (1 ) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent th e breakup of the Indian family and that these efforts have proved unsuccessful, and (2) the continued custody of the child by the parent or10 India n custodian is likely to result in serious emotional or physical damage to the child. See 25 U.S.C.A. §§ 1912(d ) , (f), 1914 (West law current through PL 117 -214) . Whether continued custody of the child by the parent or Indian custodian is likely to result in physical or emotion al damage to the child must be supported by evidence that includes testimony from a qualif i ed expert witness. See 25 U.S.C.A. § 1912(f). Analysis This case began in January 2021 when Martha Williams , a Department investigator, testifie d that she investigated a case involving S.A. and R.T., their mother, S.T., and R.T.,’s father, D.T. The Depart m ent received a report a lleg ing concerns for the safety and well

- being of the children and ongoing domestic violence on the part of D.T. towards S.T. , as well as concerns that S.T. and D.T. us ed methamphetamine around the children and that the domestic vi o lence had escalated. Williams and an officer of the Hudson Police Department went to S.T.’s and D.T.’s hous e and introduced themselves. Accordin g to Williams, S.T. wa s very aggressive, yelling, screaming, and cursing at her and the officer. S.T. and D.T. a llowed Williams and the officer to enter the home. During that time, the officer asked S.T. to calm down an d cooperate. When Williams attempt ed t o interview S.T., she was yelling, screaming, and cursing at both Williams and the officer . S.T. finally calme d down , and Williams interviewed S.T., D.T., and all the household members. She informed S.T. and D.T. that they need ed to drug test for the Depa r tment , but S.T. and D.T. refused. Williams could not recall if the children were present that day

. After Willi a ms’s interviews, the Department initiate d a safety plan with S.T. and D.T. to

en sure the children were safe , which includ ed the requir e ment that neither parent be lef t unsupervised with the children. S.T. and D.T. were also told that they could n ot spend the night at the house. The children would remain in the home with caregivers. Everyone agreed to the safety plan and it went into ef f

ect on February 6, 2021. S.T. and D.T. agreed to be drug tested and both tested positive for methamphetamine. W illiams stated that the children were unsafe because both parents tested positive for methamphetamine. S.T . and D.T. also violated the safety p l an by staying in the house all day and all night, and the caregivers were not being protective of the children

. Williams and a caseworker from the family

- based services division went to the home for an assessment on February 22, 2021. When they arrived, W i lliams hear d S.T. cursing and y elling at them. Al though they were invited in side ,11 S.T. was “very rude,” yell ed , and refused to cooperate or listen. Williams and the caseworker determined that the children needed to be removed because the safety plan had b e en violated. The children were removed and placed in foster care. According to Williams, S.T. knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotiona l well -being. Family Service Plan

. D ah

- Mairi Scroggins was S.A.’s and R.T.’s caseworker. Upon receiving the case, Scroggins created a family plan o f service with S.T. and D.T. and reviewed the plan with them. She also contacted the children’s foster family, went to see the children, and cre a ted a child plan for them. Scro ggins stated that S.T. was required to maintain stable housing and a stable inc o me, obtain a psychosocial assessment, an ADAC assessment, and an assessment with the Burke Center, and participate in couples counseling with D.T. and individual counseling for anger. According to Scroggins, S.T. completed a “majority” of her family plan of service. However, she noted that S.T. stopped her counseling from October to December 2021. Before January 2022, S.T. and D.T. had a stable h o me, but Scroggins did not belie ve it was appropriate for the children. Scroggins stated that initially, b o th D.T. and S.T. tested positive for methamphetamine . Since then, S.T. has been drug tested monthly, always negative. To Scroggins’s knowledge, S.T. has not had any contact with D. T. since she left him and filed a protective order against him. S.T. recen t ly obtained her own house , a three

- bedroom, two bath home. Scroggins stated that i s appropriate for the children and is close to S.T.’s brother. However, S.T. only moved into the home approximately one to two months before trial. S.T. is also working at W al- Mart and has reliable trans portation. But Scroggins d id not know how much time it would take to feel confident that S.T. would protect the chi l dren from D.T. She also had

concerns about the family violence between S.T. and D.T. , S.T.’s anger , and the st a bility of S.T.’s home. Scrog gins believed that at the time of the children’s removal, S.T. knowingly placed or allowed the children to remain i n conditions or surroundings which en dangered their physical and emotional wellbeing. Ongoing violence between S .T. and D.T. was one of the p roblems identified in the service plan

. Both S.T. and D.T. participated in couples counseling, completing six sessi o ns before November 2021. Because the y were still fighting , the Department ordered additional family counseling

. According to Scroggins, the family plan of service is not a12 checklist, but S.T. had to demonstrate that she learned from the service plan. S.T. did not demonstrate that she learned from counseling because she and D.T. were still fighting in November and December 2021. Scroggins stated that S.T. failed the service plan in that instance. There were three domestic violence incidents between the cou p le : November 11, 2021, November 13, 2021, and December 25, 2021. Scroggins did not learn of these incidents un t il close to the new year. Neither S.T. nor D.T. had reported the incidents. In the October 2021 group conference, Scroggins advised S.T. to go t o th e Family Crisis Center, but after visiting the Center, S.T. determined that she did not need the Center’s he lp. She again received this opportunity in November 2021. B ecause the investigator had asked D.T. to leave the home , Scroggins did not believe i t wa s S.T.’s decision to require D.T. to leave their home. S.T. was still defending him and wondering why he could not be in the home. S.T. testified that she has stable employment, having work ed at Walmart since May 2021. S.T. completed an ADAC evaluati on, a psychosocial assessment, and cou ples and individual counseling. She did not tell the Department about the November and December incidents because she was scared for her life. She has not had contact with D.T. since December 2021. S.T. admitted that t he c hildren witnessed their fighting a nd drug usage . S.T. denied the children were at risk with her and D.T. Sh e denied that her drug use affect ed the children even though she used methamphetamine in their presence

. However, S.T. agreed that this conduct c oul d endanger the children’s safety an d wellbeing. S.T.’s Anger Issues. According to Scroggins, S.T. cannot ge t along with other people and has poor communication skills. If the caregivers attempted to schedule a meeting between S.T. and her children, Sc ro g gins stated that it would be toxic because S.T. would focus on something that the caregivers are doing wrong and “blow the whole meeting out of proportion.” S.T. “cusses them out” and does not care who is around when she does so. Scroggins recalled a g ro u p conference seven or eight months previously when S.T. “blew up” on the attorney ad litem, calling him name s . She agreed that S.T. had a violent temper and had been un able to change her behavior even though she attended treatment centers and counseling. Tyra Labette Risby , the CASA represe ntative, also expressed concern about S.T.’s anger and impulse control. She cal l ed S.T. in October 2021 about one of her children and S.T. “went off” on Risby and asked that she not call ba ck. Risby further had concerns ab out S.T.’s13 stability, permanency, and safety. She was present when S.T. “lit into” the attorney ad litem. Susa n Favor, the program director for CASA, admitted that S.T. may have an anger problem. Favor also stated t hat th ere may be some evidence that S.T

. has been back with D.T. since the trial, but she was not aware that S.T. and D.T. were together again. Domes t ic Violence. As noted previously , there were three incidents of domestic violence that occurred after the case began : November 11, 2021, Novemb er 13, 2021, and December 25, 2021. Lufkin Police Officer Reagan Jordan testified that on November 11, 2021, s h e was dispatched to an assault in progress, which alleged that D.T. was intoxicated and attempting to assault s everal members of the household. Wh en she arrived, Jordan made conta ct with the parties , including Kelly Allen, the caller, Gregory Davis, a mem b er of the household, S.T., and D.T. Jordan described S.T. as distraught, having been involved in some kind of disturbance and having some red m arks on the left side of her face a nd cheek and a small knot above her eyebrow that appeared to be swelling. S. T. told Jordan that she was in the bedroom and D.T. was drinking and very intoxicated. At one point, D.T. becam e very upset and began yelling. H e told S.T. to “go die.” A verbal d isturbance ensued, during which D.T. began aggressively advancing towards S. T. and getting in her face. S.T. said that she began to “kind of hit him” to get him out of her face and then D.T. began assaulting her. S.T. sta te d that D.T. struck her with his knee while she was on the floor. D.T. left and created a disturbance with Dav i s before going out to the porch. According to Davis, D.T. struck him in his right ear with a closed fist. Jordan stated that D.T. was very into xi cated , was vomiting, and smelled of alcohol. D.T claimed that they were just arguing, denied that anything ph y si cal occurred, and described everyone in the house as “snitches.” Based on S.T.’s appearance and statement, Jordan stated that D.T.’s denial wa s not credible. Jordan arrested D.T

. for two counts of causing bodily injury to a family member, including S.T. an d Davis. Lufkin Police Officer Christopher McClurg stated that he also responded to the November 11, 2021, call involving D.T

. He further responded to a domestic disturbance c all involving S.T. and D.T. on November 13, 2021. Dispatch st ated that an intoxicated man was in the house , was throwing things , and was attempting to assault people. Further, dispatch informed McClurg tha t the caller and other persons barricaded themsel ves in a room to separate themselves , but the male subject was tr ying to break into the room. When McClurg arrived, he14 met Allen who stated that an intoxicated D.T. came in the house and began breaking thing s. Allen stated that D.T. threw a lamp at her and the lamp hit her. McClurg arrested D.T. for assault, family v i ol ence, Class C , because Allen was his roommate. Jordan respond ed to a third call involving S.T. and D.T. on December 25, 2021, early Christma s morning. The caller was again, Allen , who advis ed dispatch that D.T. was assaulting S.T. and pulled a gun on h er . When Jordan arrived, several family members were in the yard. The officers retrieved the gun and secured it, discovering that it was a BB gu n, not a rifle. Jordan found S.T. was sweeping th e house and her demeanor was different from the first incident

. S .T. did not want to talk to Jordan , but Jordan noticed a small amount of dried blood near S.T.’s upper cheek and questioned S.T. about the blo od . S.T. told Jordan not to worry about it , but

s tated that she arrived home from work to find D.T. intoxicated

. D.T. locked S.T. out of the bedroom and she had to call Allen to “muscle” the door open. After S.T. gained access to the bedroom, D.T. began st ri king her multiple times in the face, causi ng he r to have a small scratch to the face. Jordan said that at som e point during the argument, D.T. picked up a BB gun. S.T. said she knew it was a BB gun and was not afraid of or threatened by the gun . Jordan s po ke to D.T. who, again, stated that the arg ument was verbal and that nothing physical occurred. Jordan again p l aced D.T. under arrest for assault, family violence

. After each incident, Jordan gave S.T. victim information, known as a “blue form,” which

o ut line d services for victims of domestic violence , including information regarding the Crime Victims Compensati o n Act, and telephone numbers to the police department, Salvation Army, and women’s shelters. McClurg stated that during the November 11, 2021, c al l, S.T. told him that she was under investigati on by the Department and trying to get D.T. out of the house. H e instructed her on what she needed to do to get him out. S.T. admitted that she did not inform the Department of these incidents until the en d of December 2021. According to the paternal gra ndmother, S.A. has told her about family violence such as verb a l abuse, yelling, cussing, and whippings, not spankings, or aggressive types of punishment by both D.T. and S.T. Jane Wojansinski, a licensed pr of essional counselor, stated tha t S.T. began indi vidual counseling in August 2021. She has seen progress in S.T

. and testified that she exhibits a lot of the characteristics of someone who has been a victim of family violence. I n January 2022, S.T. talked ab out getting a protective order and not living i n the same house as D.T. She has seen15 increased improvement in her confidence and ability to be independent of D.T., and to maintain healthy boundaries with anyone she brought around her children. According to Wojansinski, S.T. stated that she struggled wi th not reporting a December 2021 incident because she feared th at D.T. would retaliate against her. She was afraid to make choices that could have ramifications from him. Wojansinski was concerned that S.T. di d not report the incidents of domestic violence in November or December 2021. S.T. denied physically abusing her children. Abuse Allegations. There was an allegation by S.A. that D.T. attempted to drown her. Jessica Carlisle , a forensic interviewer at th e Children’s Advocacy Center, testified that she interviewed S.A., who was approximately ten years old, on Ja n uary 3, 2022. According to Carlisle, there was an allegation of physical abuse and the alleged perpetrator was D.T. Carlisle said that S.A. told h er that one day when she was six years old and her siblings were on the couch asleep, they were instructed to go to bed. S.A. admitted that she was reluctant to go to bed, did not listen, and did not want to go. However, she was instructed by D.T. to go ta ke a bath. When S.A. was in the bathtub, she called out for D.T. to bring her shampoo and conditioner and he d id so. Then, she stated that D.T. was sitting on the toilet watching her and became angry. S.A. stated that D.T. att empted to drown her in the b at htub. S.A. kept trying to come up from the bath water to breathe , but he continuously shoved her head back und e r the water. D.T. stopped when S.T. came home

. He told S.A. not to tell anyone what had happened. She said that D.T. told her something would h ap pen if she were to tell but she could not remem ber what that was. According to Carlisle, S.A. was consistent with the facts that Carlisle knew at the time and during her outcry. Carlisle stated that S.A. did not seem emotiona l or upset. When Carlisle

as ked S.A. if she told an adult, she stated that sh e told “Grandma.” S.A.’s paternal grandmother testified that s he is L.A.’s mother and lives in Michigan. According to the paternal grandmother, S.A. told her something “very disturbing” about D.T. during Ch ri stmas 2021. As they were Christmas shopping, S. A. asked her if she could tell her something, but she would ha v e to promise not to cry. She told the paternal grandmother that “[D.T.] tried to kill me, he tried to drown me.” S.A. stated that S.T. was not h om e, her sister was asleep in her room with D.T., and she was lying down in the living room. D.T. wanted her to take a bath, but she did not want to do so. However, eventually, she went to the bathroom and D.T. pushed her head u nder water ; she tried to get u p, but he kept push ing her head under water.16 He stopped when S.T. came home and told S.A. not to tell anyone w hat had happened. S.A. said this happened not long before she was removed from the house. S.T. did not believe the alleged attempted drowning o cc urred because D.T. was asleep at the time. She did not believe anything happened and does not believe it is a credible allegation. She did not know about it until trial, nor did she know about any alleged sexual abuse. At the de novo hearing, S.T. stated t hat she now believes the allegations, but still did not find the incident credible. Qualified Expert Witness

. Rebecca Turner , t he Indian Child Welfare social worker for the Choctaw Nation of Oklahoma, is a qualified expert w itness (QEW) designated by t he Choctaw Nation of Oklahoma to testify on behalf of the tribe and regarding the ICWA. The A ssociate J udge cer t ified Turner as an expert witness. According to Turner, R.T. is an enrolled member of the Choctaw Nation of Oklahom a. She has discussed this cas e with the Department caseworkers and reviewed the legal documents in the case , including the original removal a ffidavit, the permanency reports, police reports, CASA reports, conduct reports from the foster home, and em ails from Scroggins. Based on her in vo lvement with the case, she stated that active e fforts were employed to prevent the breakup of the family. At t he time of the initial removal of the child, D.T.’s and S.T.’s behaviors were not consistent with culturally appropriate parenting among the Cho ct aw Nation of Oklahoma, including the physical abuse and drug u se. From her understanding, both parents

were c o ntributors to the domestic violence. She was not aware of any physical damage that S.T. ever inflicted on R. T. Turner has been on the case sinc e May 2021 and attended most, if not all, the hea rings. She believed returning R.T. to S.T. would likely result in serious emotional or physical damage to her

. She did not believe that S.T. corrected the safety concerns related to her anger issues, or the do mestic violence between the couple , and her contribution to that violence. According to Turner, those safety c oncerns have not been alleviated. In the anger management portion of the service plan, Turner stated that S.T. admitted to contributing to the d om estic violence. If S.T. did not get a protective order until January 2022 , after three incidents of domestic v iolence, Turner did not believe S.T. could protect R.T. At the de novo hearing, Turner expressed concerns that S.T. is having an ongoing relati on ship with D .T. and still has anger management i ssues. According to Turner, D.T.’s17 relatives stated that S.T. a nd D.T. continued to spend the night together, are in a relationship, and that S.T. apologized to him for filing the protective order. Conclusi on From the above evidence, a reasonable fact fin der could have formed a firm belief or conviction that S.T. use d methamphetamine around the children before they were removed, had anger issues, acknowledged th ree domestic violence incidents after the case be gan, and did not report those incidents to the Department

. See T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(D), (E). T h e trial court could have also determined that S.T. did not believe or find credible S.A.’s allega tion that D.T. attempted to drown her an d could h ave returned to a relationship with D.T. after the trial

. See id. Therefore, we hold that the evidence, viewe d in the light most favorable to the finding, was sufficiently clear and convincing that a reasona ble trier of fact could have formed a firm beli ef or conviction that S.T. knowingly placed or kn owingly allowed the children to remain in conditions or surrou n dings that endangered the physical or emotional well being of the children, and engaged in conduct or knowingly placed the children with persons w ho engaged in conduct that endangered the physical or emotional well being of the children

. See In re J.F.C. , 96 S.W.3d at 266. Although S.T. was no longer using illegal drugs, and had a home and employment, she did not believe that her children were har me d by her drug use and she only left D.T. and ob tained a home a mere one to two months before trial. This evid e nce is not so significant that a reasonable trier of fact could not have reconciled th e evidence in favor of its finding and formed a firm belie f or conviction that S.T. knowingly placed or knowingly allowed the children to remain in conditions or surroun d ings that endangered the physical or emotional well being of the children, and engaged in conduct or knowingly placed the children with persons w ho engaged in conduct that endangered the physical or emotional well being of the children. See In re C.H. , 8 9 S.W.3d at 25. Therefore, we hold that the evidence is legally and factually sufficien t to support termination of S.T.’s parental rights under subsections (D) and (E) of Texas Family Code Sectio n 161.001(b). See T EX

. R. A PP

. P. 47.1. Further, having view e d the evidence in the light most favorable to the verdict, we conclude that the Department proved beyond a reasonable doubt that (1) active effo rt s have been made to provide remedial services an d rehabilitative programs designed to prevent the breakup of t he Indian family and that the efforts proved unsuccessful, (2) that the continued custody of18 R.T. by S.T. is likely to result in serious emotion al or physical damage to R.T., and (3) that the fi nding is supported by testimony by an expert witness. See 25 U .S.C.A. §§ 1912(d), (f); Jackson , 443 U.S. at 319, 99 S. Ct. at 2789. We overrule S.T. ’s first issue.

B EST I NTERESTS OF THE C HILD In her secon d issue, S.T. argue the evidence is factually insu fficient to support a finding that termination of her parental rights is in the children’s best interest. In determining the best interes t of the child, a number of factors have been considered, i ncluding (1) the desires of the child; (2) the emotional and physical needs of the child now and in the futur e ; (3) the emotional and physical danger to the child now and in the future; (4) the par ental abilities of the individuals seeking custody; (5) t he programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the exist ing parent

- child relationship is not a proper one; and (9 ) any excuse for the acts or omissions of the parent. Holley v . Adams , 544 S.W.2d 367, 371-72 (Tex. 1976). The f amily code also provides a list of factors that we will consider in conjunction with th e above -mentioned Holley factors. See T EX

. F AM

. C ODE A NN . § 263.307(b) (West 2019). These include (1) the child’s age and physical and mental vulnerabilities; (2) the m agnitude, frequency, and circumstances of the harm to the child; (3) the results of psychiatric, psychological, or developmental evaluations of t he child, the child’s parents, other family members, or others who have access to the child’s home; (4) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (5) the willingness and ability of th e child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an a ppropriate agency’s close supervision; (6) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (7) whether the child’s family demonstrates adequate parenting skills; a n d (8) whether an adequate social support system consisting of an extended family and friends is available to the child. See id. § 263.307(b)(1), ( 3), (6), (8), (10), (11), (12), (13). The evidence need not prove all statutory or Holley factors in order to show that termination of parental rights is in a child’s best interest. See Holley , 544 S.W.2d at 372; In re J.I.T.P. , 99 S.W.3d 841, 848 (Tex. Ap p.– Houston [14th Dist.] 2003, no pet.). In other words, the19 best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M. , 58 S.W.3d at 801 . Undis pu ted evidence of just one factor may be sufficient in a particular case to support a finding that te rmination i s in the child’s best interest. In re M.R.J.M. , 280 S.W.3d at 507 . But the presence of scant evidence rel ev ant to each factor will not support such a finding. Id. Evidence supporting termination of parental rights is also probative in determining whether termination is in the best interest of the child. See In re C.H. , 89 S.W.3d at 28-29 . We appl y the statutory and Holley factors below. Analysis As noted above, S.T. had anger issues, was dismissive of the effects of her drug use around the children, did not inform the Department of three incidents of domestic violence with D.T. during the case, di d not believe that S.A.’s allegations against D.T. were credible, and may have returned to D.T. after the initi a l trial. The evidence also shows that Scr oggins stated that the couple has been fighting throughout the entire case , even when the Department at te mpted to provide them with help and additional counseling. The Department tried to get S.T. to go to the Family C risis Center to obtain help. However, Scroggins said, S.T. and D.T. were “adamant” that they were not fighting even though D.T. had been arrested. Scroggins stated that if the parental rights of both parents are terminated, S.A. will live with her patern a l grandmother in Michigan. At the time of the de novo hearing, the paternal grandmother’s home had been approved by the State of Michigan. The D ep artment is also in contact with an aunt and uncle in Oklahoma for a possible placement for R.T.. These possible placem e nts are Native American, as R .T. is an “Indian” child pursuant to ICWA. S.T. said that S.A. wanted to go to her paternal grandmother’s house if s he could not go home to her mother. Scroggins believed it was significant that S.A. made an outcry to her pat e rnal grandmother in December 2021, but not her mother. Scroggins believes S.A. would be safe with her paternal grandmother in Michigan. Accordi ng to Risby, the CASA representative, s he has met and conversed with the paternal grandmother virtually and b e lieves that it would be a safe a nd stable home. Risby went to see S.T.’s new home the day before trial and stated that it was appropriate. She w as concerned that the children receive s afety, permanency, and stability. Risby found it “very significant” that S. A . made an outcry to her paternal grandmother and not her mother, stating that she could have felt secure and unthreatened. Scroggins and Risby b elieved that it was in the best interest of the20 children for S.T.’s parental rights to be terminated. Michell e Smith, a foster care speciali st with Children’s Hope, testified that she began working with S.A. and R.T. between June 2021 and August 2021. Sh e made monthly visits to the foster home and interviewed them at each visit. Smith stated that the children adj u sted to the home and were doing great although there were some behavioral issues. The children reported that they loved the foster home, felt sa fe at the foster home, and were doing well and happy. Smith stated that the children seemed to be thriving, hap p y, and healthy. She stated tha t the children did not ex press a desire to see their parents

. According to S.A. ’ s paternal grandmother, L.A. is incar ce rated in Texas. S.A. is ten years old and the grandmother wishes to adopt her. The paternal grandmother state d that she was at the hospit al when S.A. was born and S.A. spends every summer with her. She stated that she and S.A. have a very good relationsh ip . The paternal grandmother has a clean house, room, bed , and toys for S.A . The paternal grandmother bel i eved it was in S.A.’s best intere st for L.A.’s and S.T. ’s parental right to be terminated. Turner stated that the children are in a traditional f oster care placement and the Department is actively seeking an ICWA

- compliant placement for R.T. in Oklahoma. She believes that it would be in R.T.’s best interest for S.T.’s parental rights to be terminated for the child’s safety

. Although some evidence m ight weigh against the finding, such as S.T. having a current stable home and employment, this evidence is no t so significant that a reasonable fact finder could not have reconciled this evidence in favor of its finding and formed a firm belief or convic ti on that terminating S.T.’ s parental rights is in the children’s best interest. See T EX

. F AM

. C ODE A NN

. § 161. 001(b) (2); In re J.F.C. , 96 S.W.3d at 266. Accordingly, we overrule her second issue regarding best interest.

C ONSERVATORSHIP In her third issu e, S.T. argues that the trial court abused its discretion by finding that her appointm ent as conservator would si gnificantly impair the children’ s physical health or emotional development. We review a trial court ’ s appointment of a non

- parent as sole mana gi ng conservator for abuse of discretion and reverse only if we determine the appointment is arbitrary or21 unrea so nable. In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007). Courts have previously held that when evidence is sufficient to terminate parental rights , a trial court does not abuse its discretion in appointing the Department as the chil d’ s managing conservator. S ee Interest of T.N.R. , No. 14-21-00473- CV, 2022 WL 370035, at *7 (Tex. App.

— Houston [14th Dist.] Feb. 8, 2022, no pet.) (mem. op.). Because the t rial court terminated S.T.’s rights to the child ren , and we hereby affirm that decis ion, we cannot say that t he trial court abused its discreti on in appointing the Department as the child ren’s permanent managing conservator. Accordingly, we overrule S.T. ’s third issue.

D ISPOSITION Having overruled all of S.T.’s issue s, we affirm the judgment of the trial court.

G REG N EELEY Justice
Opinion delivered October 31, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.22 

## COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

OCTOBER 31, 2022

NO. 12-22-00111- CV

IN THE INTEREST O F S. A. AND R.T., CHILDREN
Appeal from the County Court at La w No . 2 of Angelina County, Texas (Tr.Ct.No. CV -00837-21-02) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being con si dered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgmen t of the cou rt below be in all things affirmed , and that this decision be certified to the court below for obse rv ance. Greg Neeley , Justice. Pane l consisted of Worthen, C.J., Hoyle, J., and Neeley, J.