COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

R.F.,

 Appellant,

v.

TEXAS DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES,

 Appellee. 

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No. 08-12-00173-CV

Appeal from

65th District Court

of El Paso County, Texas

(TC # 2009CM6364)

O P I N I O N

Appellant brings an accelerated appeal from the trial court’s order terminating his 

parental rights to six minor children. In three issues, he complains of evidentiary error and 

challenges the sufficiency of the evidence. For the reasons that follow, we affirm. 

FACTUAL SUMMARY

In September 2009, TDFPS removed six children from the care of their mother, V.M., 

and Appellant.1 The Department was granted temporary conservatorship of the children. In 

 

1

In order of oldest to youngest, the children’s initials are R.F., V.F., A.F., R.F., A.F., and J.F. In his brief, 

Appellant assigns the letters A-F to the children as follows: 
2

October 2009, it appointed Priscilla Thornton as the case worker for all of the children. 

According to Thornton, the children were removed due to the parents’ continued drug use. The 

children were also residing in a small, unsanitary home “that was not able to meet their needs.” 

They were not eating and Child E tested positive for cocaine.

Thornton worked with Appellant and V.M. for approximately eighteen months, and in 

January 2011, they reached a settlement agreement. The Agreement provided that TDFPS would 

become the permanent managing conservator of the children, and the parents would be appointed 

as possessory conservators. The goal was family reunification. Thornton testified that the 

Agreement was designed to allow V.M. more time to “get her home in order.” The Department 

felt that if the mother had more time, she could be successful and the children could be returned 

to her. At the time the Agreement was approved by the court, V.M. had a stable home and was 

looking for employment. Thornton prepared a service plan for the parents. Appellant was 

required to: (1) have weekly supervised visits with his sons; (2) provide financial support to 

V.M.; (3) obtain employment; (4) keep in communication with Thornton; and (5) attend the 

children’s “educational appoint- -- needs.” In February 2011, the trial court appointed TDFPS as 

permanent conservator of the children and V.M. and Appellant as possessory conservators. 

 

Child A’s initials are R.F.

Child B’s initials are V.F.

Child C’s initials are A.F.

Child D’s initials are R.F.

Child E’s initials are A.F.

Child F’s initials are J.F.

For ease of reference, we will do likewise.
3

While visiting his sons in June 2011, Appellant was arrested on charges of indecency 

with a child for engaging in sexual contact with one of his daughters.2 On September 29, TDFPS 

filed a petition for modification and termination of Appellant’s and V.M.’s parental rights. At 

the time, Appellant was still incarcerated and V.M. had not had contact with the children since 

July. On November 1, Appellant pled guilty to the indecency charges. The trial court accepted 

his plea and placed him on deferred adjudication community supervision for a period of ten 

years. Once he was out of jail, Appellant contacted Thornton. After his release, he was only 

permitted to visit with his oldest son, Child A. Thornton testified that she allowed monthly, 

supervised visits because the child asked to see his father. 

On April 24, 2012, TDFPS filed a first amended petition which provided, in relevant part: 

8. Termination of [Appellant’s] Parental Rights

If reunification with the father cannot be achieved, the Court should terminate the 

parent-child relationship between [Appellant] and the child [A, B, C, D, E, and F] 

under Chapter 161, Texas Family Code, because termination of the parent-child 

relationship is in the child’s best interest and [Appellant] has committed one or 

more of the following acts or omissions: 

8.1. knowingly placed or knowingly allowed the child to remain in conditions or 

surroundings which endanger the physical or emotional well-being of the child;

8.2. engaged in conduct or knowingly placed the child with persons who engaged 

in conduct which endangers the physical or emotional well-being of the child;

8.3. failed to support the child in accordance with the father’s ability during a 

period of one year ending within six months of the date of the filing of the 

petition;

8.4. been convicted or has been placed on community supervision, including 

deferred adjudication community supervision, for being criminally responsible for 

the death or serious injury of a child under the following sections of the Penal 

Code or adjudicated under Title 3 for conduct that caused the death or serious 

injury of a child and that would constitute a violation of one of the following 

Penal Code sections:

 

2

 The allegations related only to Child C. But at the May 4, 2012 hearing, testimony revealed that both Child C and 

Child B were sexually assaulted by Appellant. 
4

§ 21.11 (indecency with a child)

8.5. constructively abandoned the child who has been in the permanent or 

temporary managing conservatorship of the Department of Family and Protective 

Services or an authorized agency for not less than six months and: (1) the 

Department or authorized agency has made reasonable efforts to return the child 

to the father; (2) the father has not regularly visited or maintained significant 

contact with the child; and (3) the father has demonstrated an inability to provide 

the child with a safe environment; 

8.6. failed to comply with the provisions of a court order that specifically 

established the actions necessary for the father to obtain the return of the child 

who has been in the permanent or temporary managing conservatorship of the 

Department of Family and Protective Services for not less than nine months as a 

result of the child’s removal from the parent under Chapter 262 for the abuse or 

neglect of the child; 

Hearings were conducted on April 30 and May 4, 2012. Appellant and V.M. testified at 

the hearing, as well as Thornton and Irene Burgos-Cadena, the children’s therapist. The 

following exhibits were admitted into evidence: (1) the indictment charging Appellant with 

indecency with Child C; (2) the November 7, 2011 judgment finding Appellant guilty and 

ordering he be placed on deferred adjudication community supervision for ten years; (3) 

Cadena’s records from her therapy sessions with the children; (4) the trial court’s order 

approving the January 2011 Settlement Agreement; and (5) the February 2011 final order. On 

May 15, 2012, the trial court signed an order terminating Appellant’s parental rights pursuant to 

Section 161.001(1)(L)(iv) of the Texas Family Code and found termination to be in the best 

interest of the children.

BURDEN OF PROOF

The natural right of a parent to the care, custody, and control of their children, is one of 

constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also Santosky v. 

Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982)(acknowledging 
5

that a parent’s rights to “the companionship, care, custody, and management” of their children 

are constitutional interests, “far more precious than any property right.”) Not only is a parent’s 

interest in maintaining custody of and raising his or her children “paramount;” it is quite possibly 

the oldest fundamental liberty recognized by our Courts. See In the Interest of M.S., E.S., D.S., 

S.S., and N.S., 115 S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a 

parent’s interest in maintaining custody of and raising his or her child is paramount”); Troxel v. 

Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)(in discussing the 

constitutional stature of parental rights, the United State Supreme Court said, “the interest of 

parents in the care, custody, and control of their children--is perhaps the oldest of the 

fundamental liberty interests recognized by this Court.”); see also In re M.S., 115 S.W.3d at 549 

(“Termination of parental rights is traumatic, permanent, and irrevocable.”).

Although parental rights are of constitutional magnitude, they are not absolute. In the 

Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002)(“Just as it is imperative for courts to recognize 

the constitutional underpinnings of the parent-child relationship, it is also essential that 

emotional and physical interests of the child not be sacrificed merely to preserve that right.”). A 

parent’s rights may be involuntarily terminated through proceedings brought under Section 

161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001 (West 2008). Under 

this provision, the petitioner must establish one or more of the acts or omissions enumerated 

under subsection (1) as grounds for termination and must also prove that termination is in the 

best interest of the child. See id. 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. Texas Department 

of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
6

Because of the elevated status of parental rights, and the severity and permanency of 

termination, the quantum of proof required in a termination proceeding is elevated from the 

preponderance of the evidence to clear and convincing evidence.3 Santosky, 455 U.S. at 747, 

102 S.Ct. at 1391; accord Holick, 685 S.W.2d at 20-21.; see In re M.S., 115 S.W.3d at 547 and 

In the Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no 

pet.)(cases recognizing that involuntary termination of parental rights is a drastic remedy which 

divests the parent and child of all legal rights, privileges, duties, and powers normally existing 

between them, except for the child’s right to inherit from the parent.); see also In the Interest of 

B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003)(noting that because of the severity and permanency 

of termination, due process requires the party seeking to terminate parental rights prove the 

necessary elements by the heightened burden of proof of clear and convincing evidence.). 

“Clear and convincing evidence” means the measure or degree of proof 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 established.” TEX.FAM.CODE ANN. § 101.007 (West 2008); see In the Interest of

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616 

(Tex. 2007)(contrasting the standards applied in termination proceedings and the standards 

applied in modification proceedings); In the Interest of C.D., No. 02-10-00070-CV, 2011 WL 

1743688, at *4 (Tex.App.--Fort Worth May 5, 2011, no pet.). This intermediate standard falls 

between the preponderance of evidence standard of ordinary civil proceedings and the reasonable 

doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); 

In re D.T., 34 S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet. denied)(op. on reh’g). 

 

3 This heightened standard is likewise statutorily mandated. See TEX.FAM.CODE ANN. § 161.001 (West 

2008)(stating that, “The court may order termination of the parent-child relationship if the court finds by clear and 

convincing evidence . . . .” [Emphasis added]).
7

Although the proof must be more than merely the greater weight of the credible evidence, there 

is no requirement that the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 

570. We strictly scrutinize termination proceedings, and construe any statutes involving 

involuntary termination in favor of the parent. Holick, 685 S.W.2d at 20-21; In the Interest of

A.V., 849 S.W.2d 393, 400 (Tex.App.--Fort Worth 1993, no writ).

STANDARDS OF REVIEW

When reviewing legal sufficiency or “no evidence” challenges to termination findings, 

we consider all of the evidence in the light most favorable to the trial court’s finding, “to 

determine whether a reasonable trier of fact could have formed a firm belief or conviction that its 

finding was true.” In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re

J.F.C., 96 S.W.3d at 266. We give deference to the fact finder’s conclusions, indulge every 

reasonable inference from the evidence in favor of that finding, and presume the fact finder 

resolved any disputed facts in favor of its findings, so long as a reasonable fact finder could do 

so. Id.; In re J.F.C., 96 S.W.3d at 266. We disregard any evidence that a reasonable fact finder 

could have disbelieved, or found to have been incredible, but we do not disregard undisputed 

facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266. A legal sufficiency or no 

evidence point will only be sustained when the record discloses one of the following: (1) a 

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence 

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to 

prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes 

conclusively the opposite of a vital fact. See Swinney v. Mosher, 830 S.W.2d 187, 194 

(Tex.App.--Fort Worth 1992, writ denied).
8

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

finder’s findings, and we cannot supplement such judgment with our own. In the Interest of 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006), citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) and 

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). “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, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d at 108; 

quoting In re J.F.C., 96 S.W.3d at 266 (internal quotations omitted). Moreover, in applying this 

standard, our review “must not be so rigorous that the only factfindings that could withstand 

review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d at 26; citing 

Santosky, 455 U.S. at 767-69, 102 S.Ct. 1388; see also In re H.R.M., 209 S.W.3d at 108.

EXCLUSION OF EVIDENCE 

In Issue One, Appellant complains that the court erred by refusing to allow him to testify 

that, despite his guilty plea, he did not commit the offense of indecency with a child. During 

Appellant’s initial testimony, his attorney attempted to ask him why he pled guilty to the sexual 

offense. The State objected on grounds of collateral estoppel. The trial court sustained the 

objection.

After Appellant was excused, the State called the children’s therapist and the case worker 

to testify. Cadena testified that both of Appellant’s daughters reported that Appellant had 

sexually assaulted them. She did not testify to the details. The State then rested its case. 

Appellant was re-called to the stand and his attorney again tried to elicit testimony as to why he 

pled guilty. The State objected, arguing Appellant could not collaterally attack his prior 
9

conviction. Appellant’s counsel countered that Cadena’s testimony had “opened the door.” The 

trial court disagreed, sustained the State’s objection, and excluded the testimony. 

Appellant’s trial counsel subsequently offered the testimony via a bill of exception. 

Appellant testified that he never sexually abused either of his daughters. He pled guilty because 

of his prior felony convictions and because his defense counsel told him he was looking at fifteen 

years because of his past criminal history. Appellant also testified that after he was arrested in 

June, “everything fell apart.” He wanted to get out as quickly as he could so that he could do 

whatever he needed to do to keep the family together. 

Standard of Review

Appellant contends the trial court committed “plain error” by excluding his testimony and 

that the trial court’s ruling “likely resulted in prejudice.” We review a trial court’s decision to 

admit or exclude evidence for an abuse of discretion. Bay Area Healthcare Group, Ltd. v. 

McShane, 239 S.W.3d 231, 234 (Tex. 2007)(per curiam); In re C.R., 263 S.W.3d 368, 370 

(Tex.App.--Dallas 2008, no pet.). Evidentiary questions fall within the trial court’s discretion, 

and the trial court’s ruling will not be subject to reversal unless a clear abuse of discretion is 

shown. Perryman v. State, 798 S.W.2d 326, 329 (Tex.App.--Dallas 1990, no pet.); Werner v. 

State, 711 S.W.2d 639, 643 (Tex.Crim.App. 1986); see also Jackson v. State, 575 S.W.2d 567, 

570 (Tex.Crim.App. 1979) “When a ruling excludes evidence, to preserve error the appellant 

must have made the substance of the evidence known to the trial court through an offer of proof, 

unless the substance of the evidence was apparent from the context within which the question 

was asked.” In re Commitment of Day, 342 S.W.3d 193, 199 (Tex.App.--Beaumont 2011, pet. 

denied). “To properly pass on the question of the exclusion of testimony, the record should 

indicate the questions that would have been asked, what the answers would have been and what 
10

was expected to be proved by those answers.” Lopez v. Southern Pacific Transportation 

Company, 847 S.W.2d 330, 336 (Tex.App.--El Paso 1993, no writ).

Analysis

At the termination hearing, Appellant tried to deny that he ever committed the sexual 

offense and to offer reasons for his guilty plea. “A collateral attack is an attempt to avoid the 

binding force of a judgment in a proceeding not instituted for the purpose of correcting, 

modifying, or vacating the judgment, but in order to obtain some specific relief which the 

judgment currently stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.

2005). A guilty plea collaterally estops the convicted party from relitigating his guilt because, “a 

valid guilty plea serves as a full and fair litigation of the facts necessary to establish the elements 

of the crime.” Johnston v. American Medical International, 36 S.W.3d 572, 576 (Tex.App.--

Tyler 2000, pet. denied), quoting State Farm Fire & Cas. Co. v. Fullerton, 118 F.3d 374, 378, 

384 (5th Cir. 1997)(internal quotations omitted).

Appellant directs our attention to In the Interest of S.J.G., 124 S.W.3d 237 (Tex.App.--

Fort Worth 2003, pet. denied) and In the Interest of A.H.L., III, 214 S.W.3d 45, 56 (Tex.App.--

El Paso 2006, pet. denied). In In re S.J.G., the defendant pled guilty to sexually assaulting his 

four-year-old daughter and was sentenced to thirty-five years’ imprisonment. 124 S.W.3d at 

240. The State filed a petition to terminate the parent-child relationship between the defendant 

and S.J.G. Id. At the termination hearing, an investigator with TDPRS testified in detail 

regarding an outcry statement the child made about the sexual assault. Id. at 245. The detective 

who interviewed the defendant testified that the defendant had confessed to the assault in detail, 

saying things such as, “that he had put his penis in S.J.G.’s mouth ten times or less and put his 

finger in her anus on at least two occasions,” that during “ the three-month period in which 
11

S.J.G. lived with him, he had sexually assaulted her eight times,” and that he committed the 

abuse because “he just could not overcome his urges.” Id. The defendant claimed he was fooled 

into pleading guilty and denied ever sexually assaulting S.J.G. Id. He was drunk when he 

confessed to the police and did not remember the entire conversation. Id. Based on the 

defendant’s guilty plea, his confession, and other evidence, the trial court terminated his parental 

rights. Id. at 240. The order specified that termination was appropriate under Section 161.001

(1)(D), (E), (L), and (Q). Id. at 239. The father appealed and challenged the factual sufficiency 

of the evidence to sustain the court’s findings. Id. at 244. The court of appeals found the 

evidence sufficient to prove that he “knowingly placed S.J.G. in conditions or surroundings that 

endangered her physical and emotional well-being and that [he] engaged in conduct that 

endangered S.J.G.’s physical or emotional well-being.” Id., citing TEX.FAM.CODE ANN.

§ 161.001(1)(D), (E). The court did not address whether the evidence was sufficient to sustain 

the other two grounds, nor was it asked to determine (1) the admissibility of the defendant’s 

testimony denying that he committed the offense, or (2) whether a defendant is permitted to 

collaterally attack a final conviction. See In re A.H.L., III, 214 S.W.3d at 55. There, the 

appellant argued that the trial court erred by failing to provide him an evidentiary hearing based 

on his contention that his counsel was ineffective for failing to collaterally attack his aggravated 

assault conviction. Id. at 55-56. In support of his claim, the appellant cited to S.J.G. This court 

responded simply:

We find the case distinguishable. In the absence of any other authority permitting 

[the appellant] to collaterally attack his final conviction, we conclude that [the 

appellant] was not entitled to an evidentiary hearing on this allegation.

Id.
12

Appellant’s guilt had already been determined in the prior criminal proceeding. 

Therefore, the issue of Appellant’s guilt could not be relitigated, regardless of the reasons for his 

guilty plea. Finding no abuse of discretion, we overrule Issue One. See Johnston, 36 S.W.3d at 

576.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT TERMINATION UNDER 

TEXAS FAMILY CODE SECTION 161.001(1)(L)(iv)

The trial court ordered termination of Appellant’s parental rights based in part on a 

finding that the State proved, by clear and convincing evidence, that termination was appropriate 

under Texas Family Code Section 161.001(1)(L)(iv). Section 161.001(L)(iv) provides as 

follows:

The court may order termination of the parent-child relationship if the court finds 

by clear and convincing evidence:

(1) that the parent has: 

. . .

(L) been convicted or has been placed on community supervision, including 

deferred adjudication community supervision, for being criminally responsible for 

the death or serious injury of a child under the following sections of the Penal 

Code or adjudicated under Title 3 for conduct that caused the death or serious 

injury of a child and that would constitute a violation of one of the following 

Penal Code sections:

. . .

(iv) Section 21.11 (indecency with a child);

[Emphasis added]. TEX.FAM.CODE ANN. § 161.001(1)(L)(iv). 

In Issue Two, Appellant contends that there is no evidence or factually insufficient 

evidence to terminate his parental rights under Section 161.001(1)(L)(iv) of the Texas Family 

Code. On appeal, Appellant does not challenge the sufficiency of the evidence to prove he was 

placed on deferred adjudication community supervision for the offense of indecency with a 
13

child.4 Rather, Appellant contends there is no evidence, or insufficient evidence, to prove that 

his conduct “caused the death or serious injury of a child,” as required under subsection (L).

Few cases address what constitutes “serious death or injury” as required by Section 

161.001(1)(L). In his brief, Appellant relies heavily on Vidaurri v. Ensey, 58 S.W.3d 142 

(Tex.App.--Amarillo 2001, no pet.). There, the Enseys filed a petition to terminate Vidaurri’s 

parental rights to his biological son and sought a judgment permitting them to adopt the child. 

Vidaurri, 58 S.W.3d at 144. Although the petition alleged several grounds for termination, the 

trial court ordered termination under ground (L)(iv), based on Vidaurri’s conviction for 

indecency with his stepdaughter.5 Id. at 144-145. Specifically, the trial court found by clear and 

convincing evidence that Vidaurri “had been placed on deferred adjudication community 

supervision for being criminally responsible for the death or serious injury of a child under 

section 21.11 of the Texas Penal Code.” Id. at 144. (internal quotations omitted). Vidaurri 

alleged that the Enseys failed to prove the “death or serious injury of a child” element under 

Texas Family Code Section 161.001(1)(L)(iv). Id. The appellate court agreed, finding no 

evidence of serious injury of a child.6 Id. (stating that “analysis leads us to conclude that the 

 

4 The evidence in the record includes the indictment which charges Appellant with intentionally or knowingly 

engaging in sexual contact with his daughter by touching her genitals. The record also includes a copy of the final 

judgment and conviction for the offense. Therefore, the evidence clearly demonstrates that Appellant pled guilty to 

the offense of indecency with a child and was placed on deferred adjudication community supervision for that 

offense. We also note that the indictment and final judgment ordering deferred adjudication were admitted into 

evidence without objection. 

5 Vidaurri pled guilty to charges of sexual indecency with his stepdaughter and was granted deferred adjudication 

community supervision. Vidaurri, 58 S.W.3d at 144-145. He was later adjudicated guilty and imprisoned. Id. at 

145. At the time of the appeal, Vidaurri, had filed a writ of habeas corpus attacking his original guilty plea. Id. 

6 The appellate court rejected the trial court’s finding of fact that Vidaurri had been placed on deferred adjudication 

community supervision for being criminally responsible for serious injury to a child. Vidaurri, 58 S.W.3d at 146 

(holding that the trial court’s finding, “is not in and of itself evidence that Vidaurri was criminally responsible for 

serious injury to a child.” Id. at 147. The court similarly rejected evidence of an order prohibiting Vidaurri from 

contacting his stepdaughter. Vidaurri, 58 S.W.3d at 147 (“nothing before us indicates that the only reason why such 

a condition could be imposed is because he seriously injured a child while committing the indecency”). The 

confession could not be considered because Vidaurri did not confess but instead invoked his Fifth Amendment right 

against self-incrimination. Id. at 146; 147. Even had he done so, “the only way that the confession itself could be 
14

foregoing indicia, whether considered collectively or separately, fall short of constituting a 

scintilla of evidence, much less some evidence, of serious injury.”). 

While the Texas Supreme Court has not directly addressed the issue, it has commented 

on it. See In the Interest of L.S.R., 92 S.W.3d 529 (Tex. 2002)(per curiam); In In the Interest of

L.S.R., 60 S.W.3d 376 (Tex.App.--Fort Worth 2001, pet. denied), the appellant challenged the 

legal sufficiency of the evidence to terminate his parental rights under Section 161.001(1)(L)(iv) 

of the Texas Family Code. The evidence at trial demonstrated that he had received deferred 

adjudication for the offense of indecency with a child, and that the offense occurred when he was 

sixteen and the victim (his cousin) was four years old. Id. The court of appeals recounted that 

appellant was treated for pedophilia. Id. The court concluded: 

While the conviction might be sufficient evidence of death or injury in those cases 

where death or serious injury to the child is an element of the offense, we hold 

that where death or serious injury is not an element of the offense, the conviction 

or deferred adjudication is not by itself sufficient evidence to support termination 

under section 161.001(1)(L)(iv).

Id. at 379. Although the Supreme Court denied the petition for review, it issued the following 

per curiam statement:

J.R. and L.R. appeal a judgment terminating their parental rights to their daughter, 

L.S.R. Section 161.001(1)(L)(iv) of the Texas Family Code provides for 

termination if a parent has been convicted or placed on community supervision, 

including deferred adjudication community supervision, ‘for being criminally 

responsible for the death or serious injury of a child’ under various Penal Code 

sections, including a conviction for indecency with a child under Section 21.11 of 

the Penal Code. The State presented evidence at trial showing that J.R. had 

received deferred adjudication for the offense of indecency with a child, an 

 

some evidence of having seriously injured [his stepdaughter] would be if such injury were implicit in the offense of 

indecency with a child.” Id. at 147. The court was unwilling to hold that serious injury was implicit in the offense 

and therefore concluded that Vidaurri’s non-confession “in and of itself constitutes no evidence of serious injury.” 

[T]he effect, if any, of the incident upon her physical or mental condition went unaddressed at 

trial. Similarly absent is any testimony, expert or otherwise, suggesting that one who has been the 

victim of an indecency within the ambit of § 21.11 necessarily suffers any injury, serious or 

otherwise. 

Id.
15

offense J.R. committed against his four-year-old cousin when he was sixteen. 

The court of appeals held that there was no evidence to support termination under 

Section 161.001(1)(L)(iv) because there had been ‘no showing that J.R.’s cousin 

suffered death or serious injury as a result of his conduct.’ The court of appeals 

deleted this ground for termination from the judgment, but otherwise affirmed the 

judgment against J.R. 

We deny the petitions for review, but disavow any suggestion that molestation of 

a four-year-old, or indecency with a child, generally, does not cause serious 

injury. [Emphasis added].

In re L.S.R., 92 S.W.3d at 529. (Internal citations and quotations omitted). 
16

Application and Analysis

Here, the record contains expert testimony from the child’s therapist. Cadena is a 

licensed clinical therapist who began providing therapy sessions for five of the six children upon 

their removal in September 2009. She continued to provide therapy at the time of trial.7 She 

testified that Child C suffered from severe anxiety issues. The child requires medication, suffers 

from enuresis and encopresis, and has been treated in a mental hospital. Child C does not want 

to see her father and has expressed anger toward him, as well as fear about returning to her prior 

living environment. While what constitutes “serious injury” in this context has not been 

specifically defined, the injuries suffered by this child certainly support a finding that she 

suffered serious injury. 

Appellant complains that this testimony did not make a causal connection between the 

sexual abuse and the child’s hospitalization. We disagree. While Cadena may not have 

specifically attributed all of Child C’s problems to the sexual abuse, she did testify that sexual 

abuse was a factor. Appellant cites no authority, and we have found none, suggesting that sexual 

indecency must be the sole cause of serious injury. Considering all evidence in a light favorable 

to judgment, we find the evidence legally sufficient to support, by clear and convincing 

evidence, a determination that Child C suffered serious injury as a result of Appellant’s indecent 

conduct. Likewise, in light of the entire record, we find that evidence which a reasonable fact 

finder could not have credited in favor of the finding is not so significant as to prevent the fact 

finder from forming a firm belief or conviction regarding the finding of serious injury. 

Accordingly, the evidence factually is sufficient. We overrule Issue Two.

 

7

In addition to her testimony, Cadena’s records from her therapy sessions with the children were admitted into 

evidence without objection. 
17

BEST INTEREST OF THE CHILDREN

In Issue Three, Appellant challenges the sufficiency of the evidence to support the trial 

court’s best interest finding under Section 161.001(2). There is a strong presumption that a 

child’s best interests are served by maintaining the parent-child relationship. In the Interest of

L.M., 104 S.W.3d 642, 647 (Tex.App.--Houston [1st Dist.] 2003, no pet.). The Supreme Court 

has set forth a list of non-exclusive factors which can be used to determine a child’s best 

interests. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The determination of a 

child’s best interest does not require proof of any unique set of factors, and it does not limit proof 

to any specific factors. Id. Under Holley, in reviewing the sufficiency of the evidence to support 

a best-interest finding, courts may consider (1) the desires of the child, (2) the present and future 

physical and emotional needs of the child, (3) the present and future emotional and physical 

danger to the child, (4) the parental abilities of the persons seeking custody in promoting the best 

interest of the child, (5) the programs available to assist these individuals to promote the best 

interest of the child, (6) the plans for the child by the individuals or agency seeking custody, (7) 

the stability of the home or proposed placement, (8) acts or omissions of the parent which may 

indicate the existing parent-child relationship is not appropriate, and (9) any excuse for the 

parent’s acts or omissions. Id. The same evidence of acts or omissions used to establish grounds 

for termination under Section 161.001(1) may be probative in determining the best interests of 

the child. In re C.H., 89 S.W.3d at 28; In re L.M., 104 S.W.3d at 647. Termination of the 

parent-child relationship is not justified when the evidence shows merely that a parent’s failure 

to provide a more desirable degree of care and support of the child is due solely to misfortune or 

the lack of intelligence or training, and not to indifference or malice. Clark v. Dearen, 715 

S.W.2d 364, 367 (Tex.App.--Houston [1st Dist.] 1986, no writ).
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Turning to the Holley factors, the children’s therapist testified that the two girls do not 

want to even see their father, and Children B, C, and D were fearful of returning to their father 

and the same environment they experienced before TDFPS removed them. The children were 

doing well, “moving forward,” and have a “positive outlook for the future.” The case worker 

testified that the five youngest children were all placed together in a foster care with the World 

for Children. These children were excited about being adopted. Child A is willing to be 

adopted, but only by a family member. He is the only child to express any interest in seeing 

Appellant.

“The goal of establishing a stable, permanent home for a child is a compelling state 

interest.” See Walker v. Texas Department of Family and Protective Services, 312 S.W.3d 608, 

616-17 (Tex.App.--Houston [1st Dist.] 2009, pet. denied), citing In re C.E.K., 214 S.W.3d 492, 

498 (Tex.App.--Dallas 2006, no pet.). Prior to removal, it could hardly be said that Appellant 

provided the children with a stable, permanent, or sanitary home. They were forced to move 

frequently, often living in roach infested motels. They were exposed to drug use and domestic 

violence. Child E tested positive for cocaine. The children also expressed fear about returning 

to their parents because they remembered not having enough food to eat. 

With respect to emotional needs, the evidence clearly showed that the children expressed 

anger toward their father. Several of the children had emotional problems, including severe 

anxiety, and required medication. Three of the children suffered from enuresis and encopresis up 

until about three months before trial. Both girls told their therapist they had been sexually 

abused by Appellant. They were afraid of him and did not want to see him. While Cadena did 

not relate the specifics regarding the abuse at trial, she did testify that both girls recounted the 

abuse to her in detail. The girls’ stories never changed and Cadena believed they both were 
19

telling the truth. We also note that, in addition to the evidence above, the evidence discussed in 

support of the trial court’s finding under Section 161.001(1)(L)(iv) is also probative of a finding 

as to danger in determining the child’s best interest. See In re C.H., 89 S.W.3d at 28.

Appellant contends he met the physical and emotional needs of the children. He focuses 

on the fact that he paid child support, complied with his service plan, and regularly visited his 

children before he was incarcerated. The fact finder was free to weigh the evidence of 

Appellant’s past conduct with any evidence of his current or potential future conduct. In so 

doing, it could have reasonably found Appellant’s past conduct indicative of his inability to 

meet the children’s physical and emotional needs in the future. See In the Interest of T.G., 

No. 14-09-00299-CV, 2010 WL 1379977, at *9 (Tex.App.--Houston [14th Dist.] Apr. 8, 2010, 

no pet.).

There is evidence in the record that Appellant behaved appropriately during his visits 

with his oldest son. But Appellant’s prior history of drug abuse and domestic violence, as well 

as his conviction for sexual abuse of his daughter, show a lack of parental ability. Under the 

terms of his probation, Appellant cannot have the children placed with him. 

Appellant also maintains that he engaged in services prior to his arrest, continued therapy 

after his release from jail, was making great strides in therapy, and the therapist had reduced the 

frequency of sessions. But there is no evidence of programs available to assist him in caring for 

the children should they be returned, nor does Appellant offer any evidence of programs or 

assistance which would lift the term of his probation which prevents him from having contact 

with his children.

The caseworker and the therapist recommended termination of the parent-child 

relationship because it will provide the children with stability and permanence. The plan for the 
20

children was adoption. And despite Appellant’s efforts to cite to information focusing on the 

conduct of the foster parents, none of the information was before the trial court nor is it properly 

contained in the record of this court. 

In light of all of the evidence, the trial court could have reasonably formed a firm belief 

or conviction that termination of Appellant’s parental rights was the best interest of the children.

Accordingly, we hold that the evidence is both legally and factually sufficient to support the trial 

court’s finding that termination of Appellant’s parental rights was in the best interest of the 

children. We overrule Issue Three and affirm the trial court’s order of termination. 

November 8, 2012 __________________________________________

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.