### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00461
- CV

W. B. , Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 321796 , THE HONORABLE JACK WELDON JONES , JUDGE P R ESIDING

M E M O R A N D U M O P I N I O N
Appellant W.B. (Father) appeals from the district court ’ s final order, following a de novo hearing, terminating his parental rights to his two -y ear -old son, A.W. (Charlie)

. 1 In four issues on appeal, Fathe r contends that (1) this Court cannot presume that the record of the hearing before the associate judge, which preceded the de novo hearing but has not been included in the appellat e record , supports the decision terminating his parental rights; (2) the

ev i dence is legally and factually i nsufficient to prove that Father placed Charlie in an endangering environment; (3) the evidence is legally and factually insufficient to prove that Father en gaged in endangering conduct ; and (4) the evidence is legally and f actually insufficient to prove that termination of Father ’ s parental rights wa s in Charlie ’s best interest

. We will affirm the order terminating Father ’ s parental rights.

1 For the child ’ s privacy, we refer to him using a pseudonym and to his parents and other relatives by their familial relationships to ea c h other , and we refer to the child ’ s app roximate age at the time of t ri al. See Tex. Fam. C ode § 109.002(d); Tex. R. App. P

. 9.8.2 BACKGROUND The case began in late December 2020, when the Texas Department of F a mi ly and Protective Services (the Department) received a report alleging neglectful supervision of Charlie by Charlie ’ s m other, K.W. (M other) , and Father

. In the Department ’ s removal affidavit, a copy of which was admitted into evidence at the de novo he a ri ng, CPS investigator Catina Bett averred that Mother had given birth to Charlie following the relinquish ment of her pare ntal rights
to three other children , “Tammy,” “Zachary,” and “Lisa” (all pseudonyms), who had been removed from her care after Lisa h a d been born with marijuana in her system and after Mother had attempted to commit suicide

. The Department also expressed concern s about Father , who was in a relationsh ip with Mother but who was not the biological father of her other children

. According t o Bett, Father had picked up Mother ’ s children from school while he was smoking marijuana.
T he Department also received a report alleging “ sexual abuse of all the children ” by Father . Zachary had exhibited behaviors “ indicative of sexual abuse, ” includ i ng

“ attempt [ ing ] to put his mouth on another child ’ s penis. ” T he Department wa s concerned that

“ without legal intervention , [Mother] will all ow [Father] to have contact with [Charlie] , placing the child in a dangerous situation that can affect his wellbe i ng a nd life , ” that Mother “ was not able to provide a safe environment for the child as she continues to engage in sexual intercour se and be in a relationship with [Father , ] w ho sexually abused her children , ” and that Mother

“ relinquished her rights to he r othe r children and failed to disclose her involvement with the Department to the hospital to allow [Father] to have ongoing access to [ Charlie]

. ” Based on these concerns , the D epartment sought and obtained emergency removal of Charlie from Mother ’ s and F ather ’ s care and filed a petition to terminate their parental rights to Charlie

.3 In January 20 21, w hile the case was ongoing, Father was indicted on three counts of aggra vated sexual assault of a child, Tammy , who was six or seven years old at the time o f the

a lleged offenses

. The indictment, a copy of which was admitted into ev idence at the de novo hearing, alleged that Father intentionally and knowingly caused the pen etration of Tammy ’ s mouth with his sexual organ, intentionally and knowingly caused t h e penet ration of Tammy ’ s sexual organ with his finger, and intentionally and knowingly caused the penetration of Tammy’s anus with his sexual organ. In the probable

- cause affidavit for Father ’ s arrest , a copy of whic h

was admitted into evidence at the de n ovo he aring , the arresting officer averred the following:

I WOULD ADVISE THAT ON JULY 9, 2020, A CPS WORKER REPORTED AT THE KILLEEN POLICE DEPARTMENT THAT AN ALLEGATION OF AGGRAVATED SEXUAL ASSAULT OF A CHILD HAD SURFACED DURING HER INVE STIGATION. I WAS ASSIGNE D THE CASE. I WOULD ADVISE THAT I REVIEWED THE VIDEO FROM WHEN THE VICTIM, [TAMMY , ] WAS INTERVIEWED BY A FORENSIC INTERVIEWER AT THE CHILDREN ’ S ADVOCACY CENTER [CAC] IN TEMPLE, TEXAS, AND REPORTED THAT SHE HAD SEXU AL CONTACT WITH THE SUSPECT [FATH E R] AND THAT THE LOCATION OF THE ASSAULT WAS THE SUSPECT ’ S HOUSE IN KILLEEN, BELL COUNTY, TEXAS WHEN SHE WOULD VISIT WITH HER MOTHER. THE ASSAULTS OCCURRED MULTIPLE TIMES DURING THE TIMEFRAME OF JUNE 2019 THROUG H JULY 2020. I WOULD ADVISE THAT THE VICTIM F U RTHER REPORTED THAT SHE WAS 6 AN D 7 YEARS OF AGE AT THE TIME OF THE ASSAULTS

. . . . In December 2021, Charlie ’ s foster parents filed a petition to intervene in the termination suit, seeking to adopt Charlie if Mother ’ s and Father ’ s parental rights wer e termi nated. A second couple , who had adopted Mother ’ s other children in November 202 1 , also filed a p etition in intervention seeking to adopt Charlie. Meanwhile , Mother exec uted a n affidavit of relinquishment of her parental rights to Charlie. Fat her o ppos ed the termination of his parental rights

.4 T he case proceeded to a four

- day bench trial before an associate judge , after which the associate judge signed a decree terminat ing Mother ’ s and Father ’ s parental rights to Charlie , naming the Department as Char lie ’ s managing conservator , and continuing Charlie’s current placement with the foster parents . Regarding termination, t he associate judge found that Mother had executed an irrevocable affidavit of relinquishment of her parental rights , s ee Tex.
Fam. Code § 1 61.001(b)(1)(K) , and that Father had endangered Charlie ’ s physical and emotional well

- being , s ee id

. § 161.001(b)(1) (D), (E). The associate judge further found that termination of Mother ’ s and Fa ther ’ s parental rights was in Charlie ’ s best inter e s t. See id . § 161.001 ( b) (2). Father filed a request for a de novo hearing on th e issues of terminati on and placement

. At that hearing, several witnesses testified, including the Department caseworker s assigned to the case , tw o of Charlie’s guardia n s ad litem , F ather , Foster Mother , one of the adopt ive parents of Charlie ’s three siblings , the case manager for the adoption agency that licensed the siblings ’ adopt ive pare nt s , and a child psychologist

. Exhibits admitted into evid e n ce at the de novo he aring included th e re moval affidavit, Father ’ s family service plan, the final
p erman en cy report , documents related to Father ’ s p e nding criminal charges , Mother ’ s affi davit of re l in q uishm e nt, and a recording of Tammy ’ s f orensic intervi e w w ith the CA C

. At t he hearing ’ s c onclusion , the dist rict court announced that it could not conclude that the associate judge was incorrect in its r uling or that there was insufficient evidence to support its findings , and it adopted th e associate j u d ge ’s order as its own . T he district co urt subsequently signed its final order “ affirm[ing] the ruling of th e associate judge. ” This appeal followed.5 DISCUSSION

“ Abse nt record ” presumption Contemporaneous with the filing of his not i ce of appeal, F at her filed a request for
p reparation of t he clerk ’ s record and reporter ’ s record , including “ [a] full transcript of the final hearing conducted ” before the associate judge. However, the district court provided only the transcript of the d e novo hearing

. 2 In his first issue, Fath er a ss er ts that t h is Court “ should limit its [sufficiency] review to the de novo hearing in the district court and disregard the final hearing ” held before t he associate judge by not indulging the “ abs ent record ” presumption

. Se e In re G.X.H. , 627 S.W.3d
288 , 300 (Tex. 20 21) ( “ In the absence of a record, we presume the evidence was sufficient to support the trial court ’ s findings. ” )

. Father contends that “ [ i ] ndulging the absent

- record presumption in this case wou ld violate [hi s] c onstitutional right to me aningful review. ” He

a rgues that because he is indigent, h e is entitled upon request to have the county pay fo r the
t r ansc r ipt of the hearing before the associate judge

. I n Father ’ s view, because he requested the transcript b ut t he district court refused to p ay for it , “ ho ld [ing] the absence of that part of the record against [Father] by indulging the absent

- record presumption

. . . . would impose an unreasonable impediment to [Father ’ s] appellate rights, and thereby violate d ue p rocess. ” 3

2 In an email from the court reporter to Father ’ s counsel that Father attached to his brief b ut is not included in the cl erk ’ s r ecord , the court reporter wrote , “ Judg e Jones has let me know that h e is not going to approve payment for the Fi nal Hear i ng held before Judge Sims [the associate judge] on this appeal, and you’ll only have the De Novo rec ord to appeal. ” No further explanation was provided in the email

. T h e r e co r d contain s no response fro m Father ’ s counsel to this email , and the cl erk ’ s re c ord does not include any documents either denying counsel ’ s re qu est for the t ranscript or e xplaining the court ’ s reasoning for not providing it

.
3 We note that the Depart ment in its bri ef do es not add re ss the merits of this issue but asserts in stead th a t Father inadequately briefed it. We disagree. Father presented a “ clear and6 Father acknow ledges that “ [t] his Court can, however, avoid this constitutional issue by declining to consider the hearing [before the associate judge] or indulge any presumptions about what may or may not have been presented there. ” Thus, Fa th er asks this
Court to “ ei ther disregard any evidence that may have been presented at the final hearing [ before the associate judge ] or else remand to the trial court for s upplementation of the record. ” For purposes of this appea l , we will assume with ou t deciding that it is not

a

ppropriate to indul ge the absent

- record presumption here

. See Tex. R. App. P. 47.1; see also
In re B.L.D. , 113 S.W. 3d 340, 349 (Tex. 2003) (explaining that courts are to avoid decid ing constitutional questions when possible ); T .L . v. Cook Child

. ’

s Med

. C tr. , 607 S.W.3d 9 , 35 (Tex. App.

— Fort Worth 2020, pet. denied) (explaining that principle of judicial restraint require s
courts to refrain from decid ing constitutional issues “ unless it is necessary to do so ” ). Accordin gl y, we sus tain Fat her ’ s first issue to the extent that w e will limit our sufficiency review to the evidence presented at the de novo hearing

. Evidentiary s ufficiency In his second and third issues, Father asserts that the evidence is legally and factu al ly ins uff icient t o prove that he e ndangered Charlie. In h is fourth issue, Father asserts that the evidence is legally and factually insufficient to prove that termination of his parental right s is in Charlie ’ s best interest.

concise argument ” for th is contention , “ with appropriate citations to authorities and to the r ecord

. ” See Te x. R. App. P. 3 8. 1 (i) ( “ The brief must contain a clear and concise a rgument for the contentions made, with appropriate citations to authorities an d to the r ecord. ” ) ; s ee a lso Republic Underwriters Ins. Co. v. Mex

- Tex, Inc. , 150 S.W.3d 423 , 4 27 (Tex. 2004) (explaining tha t appellate rules are to be construed reason ably yet liberally to avoid briefing waiver when possible).7 Standard of review “Section 1 61.001 of the Te xas Family Code re quires two findings to s upport termination of a parent ’ s legal rights: (1) the parent ’ s acts or omissions must satisfy an enumerated statutory ground for termination; and (2) termination must be in the child ’ s best inter es t.” In r e J.F.

- G. , 627 S.W.3d 304 , 312 (Tex. 2021); see I n re N.G. , 577 S.W.3d 230, 232 (Tex. 2019) (per curiam); A.C. v. Texas Dep ’ t of Fam. & Protective Servs. , 577 S.W.3d 689, 697 (Tex. App.

— Austin 2019, pet. denied). “Proceedings to termina te the pa re nt

- child relatio nship implicate ri ghts of constitutional magnitude that qualify for heightened judicial protection.”
In re A.C. , 560 S.W.3d 624, 626 (Tex. 2018). Paren tal rights have been characterized as “essential,” “a basic civil right of man,” and “f ar more p recious than property rig hts.” Holick

v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois , 405 U.S. 645, 651 (1972)). They are “perhaps the olde st of the fundamental liberty interests” protected by the United States
Co nstitutio n. Troxel v. Gran ville , 530 U.S. 57 , 65 (2000); E.E. v. T e

xas Dep ’ t of Fam. &
Protective Servs. , 598 S.W.3d 389, 396 (Tex. App.

— Austin 2020, no pet.). “When the State initia tes a parental rights termination proceeding, it seeks not merely to infringe tha t fundament al libe rty interest, but to end it.” Santosky v . Kramer , 455 U.S. 745, 759 (1982). “Consequently, termination proceedings should be strictly scrutinized, and involu ntary termination statutes are strictly construed in favor of the pare nt.” Hol ic k , 685 S. W.2d at 20. “Because ter mination of parental r i ghts ‘is complete, final, irrevocable and divests for all time’ the natural and legal rights between parent and child,” a trial court “cannot involuntarily sever that relationship absent evidence s uf ficient t o ‘prod uce in the mind of the trier of fact a f i rm belief or conviction as to the truth of the allegations sought to be established.’ ” In re A.C. , 560 S.W.3d at 630 (quoting Tex.8 Fam. Code § 101.007; Holick , 685 S.W.2d at 20). “This heightened proof s tandard c arries the weight and gra vity due process requi r es to protect the fundamental rights at stake.” Id

. “A correspondingly searching standard of appellate review is an essen tial procedural adjunct.” Id

. “The distinction between legal and factual su fficiency lies i n the extent to wh ich disputed evidence c ontrary to a finding may be considered.” Id

. “Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact

- finding and considering undisputed contrary evide nc e, a reas onable factfinder could f orm a firm belief or

c o nviction that the finding was true.” Id . at 631. “Factual sufficiency, in comparison, requires weighing disputed evidence cont rary to the finding against all the evidence favoring the finding.” Id

. “In a factual

- sufficiency revie w, the appellate court must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id

. “Evidence is factually insufficient if, in light of the entir e record, t he disp uted evidence a

re asonable factfinder co u ld not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction t hat the finding was true.” Id

. However, “an appellate court ’ s re vi ew must n ot be s o rigorous that th e only fact findings t h at could withstand review are those established beyond a reasonable doubt.” In re C.H

. , 89 S.W.3d 17, 26 (Tex. 2002). “While parental rights are of constitutional magnitude, they are not absolute. ” Id

. “Ju st as i t is imperative f or 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.” Id

.9 Ev idence pr esented Department casew orker Melissa Macias w a s assigned to the case at the time of the hearing before the associate judge. She was the fourth caseworker assigned to the case and had been the caseworker for approximately four to five months

. Ma cias test ified that when the Depa rtment took custody of Charlie, the Department ’ s concern for Charlie ’ s safety was based on

“ the outc ry o f sexual abuse ” made against Father by Charlie ’ s older siblings , combined with the fact that Mother and Father “ were stil l together residing in the same ho usehold ” when Charl i e was born. Father ’ s family plan of service included parenting classes, a psychological evaluation , individual counseling , and random drug tests on a weekl y basis . Macias believed
t h at Father “ may have been working services ” before her involvement with t h e case but that when she received the case, Father “ was no longer working services , ” including drug testing

. Macias also testified that when she received the case, Father never allow ed her to v isit his home and that she “was never able to assess [the] sa f ety” of Father as a placement. She tried to engage with Father th rough “a combination of calls, text messages, unannounced visits to the home, announced visits to the home,” and even a letter t hat was mailed to his address. Althou gh Father responded to o ne text message and Macias spoke to him on one occasion , Father “was unwi lling to meet with” Macias. Regarding the allegations of sexual abuse against Father, Macias acknowledged th at the alle gations had been made by one of Charli e ’ s siblin g s and that the criminal case was still pend ing . However, she testified that the outcry had never changed, and “ [ t ] hat ’ s concerning because if [Charlie] were to be placed in the same home, that co ul d potenti ally happen to him as well. ” F a t her h ad no visitation with Cha r lie because of the pending sexual

- assault charges.10 Macias testified that at the time of the hearing before the a ssociate judge, the Department w as recommending termi nation of Fa th er ’ s pare ntal rights because Father “ wasn ’ t inv olved in any of his services , ” Father “ wasn ’ t making contact with the Depar tment , ” and Charlie had “ a very strong bond with his current foster family , ” who was “ will ing to adopt him. ” Macias had visited Char li e at the foster parents ’ home “ at least once a month ” and

“ [ s ] omewhere betwe e n four and seven ” times. Macias testified that Charlie “has an incredibly strong bond with the [foster] family, including their biological children,” who Charlie consider ed
to be “his bro thers and sisters.” She described the ir home as “ very, very loving ” a nd “ safe , ” with

“ appropriate play equipment for the children

. ” Macias had no concerns about the foster placement. She explained , “ They ’ re engaged all of the time that I ’ m t he re. They are able to meet all of his needs as w ell as their own biological c h ildren ’ s needs as well. ” Additionally, Charlie had been placed with the foster family since the case began, when he was either four or five days old. At the time of the de no vo hearing , Charlie had been in the foster placeme nt for
over tw o years
. Macia s further testified that when Charlie visited t he home of his biological siblings, he was “ hesitant ” to engage with them and their adopti ve parents , who were “ kind ” but

“ a lso a li ttle hesit ant ” to engage with Charlie

. Departmen t caseworker Kirby Rubin, the current caseworker assigned to the case, testified briefly that the Department ’ s policy was to try to keep siblings together bu t that this was not always possible . He te stifie d that he ha d not visited and was not familiar wit h the adoptive parents of the siblings

. Michael Lockett, the previous guardian ad litem for Charlie at the time of the hearing before the associate judge, testified that his recommendation at th e time o f th at hearing was that Mother ’ s parental rights be t erminated because of the relin q uishment , that Father ’ s11 parental rights be terminated because of the outcry of sexual abuse and Tammy ’ s CAC interview, and that Charlie remain with the foster paren ts bec au se “ that ’ s the only home that he ’ s known. ” Lockett h ad visited the foster home “ ha l f a dozen or so ” times, and during those visits , Charlie appeared to be bonded with the foster parents. Lockett had als o observed a visit between Charlie and his b iologi ca l siblings, and he described this visit as “ awkward. Not necessarily because anybo d y made it awkward, but just awkward given the reality of the case and what ’ s going on. ” Although Lockett had earlier in the case recommended that Charlie be placed with
hi s s i blings, tha t recommendation changed “ the longer t he case went on ” and Charlie b e came

“ more and more bonded to his current placement

. ” Lockett testified that there was “ no doubt ” in his mind that Father ’ s parental rights should be terminate d. Wh en asked why he h ad no doubt, Lockett explained , “ I wat ched the outcry of [Tammy] , and I w a tched it twice. And I believe what she was saying. And I believed the abuse that she suffered. And I think that woul d make it dangerous for [Charlie] to be with h is dad. ” Nothing had happened during the case that wou ld change Lockett ’ s mind about term i nating Father ’ s parental rights. Melat Mekonnen , Charlie ’ s current guardian ad litem, testified that she recommend ed termination of Father ’ s parental righ ts and that C harlie remain i n his current placement

. She had visi ted the placement twice and had wit n essed a close bond between Charlie and the foster parents ’ biol ogic al children. It was a happy home, suitable for children, and the foster parents were “ the only pa re nts that he kno ws. ” She believed that “ any placement change for [Charlie] would cause a detriment to his emotional health ” because “ [h] e ’ s been in the home since he ’ s been five days old

. ”12 Father testified that he was engaged to Mother , they stil l lived together, and there ha d never been a time when they were separated. Father explained that he had three jobs since
20 21: he worked part

- time at a food care center, c ut lawns, and chopped wood. Father further testified that he had comple ted his ser vi ces, including a psychological evaluation, individual counseling, and drug testing, although he c ould not recall the last time that he had taken a drug test for the Departmen t. Father acknowledged that he had not communicated with Department caseworkers M acias and Rubin

. He claimed th is was because they ha d “ terminated ” his services after h e had co m pleted them. Father recounted that he had engaged in individual therapy for “ [r ] ough ly eight, nine months ” and that he had been su ccessfully discharged from th erapy. Father testified that he had completed therap y because he wanted to be reunited with Cha r lie, who he had not seen in
person since Charlie ’ s removal in December 2020. If Father could not have custody of Charlie, he preferred that he be placed wit h Charlie ’ s sibli ngs because Father was “once in CPS” a nd his “brother and sister were tor [n] apar t ,” so he did not want something similar to happen to Charlie. Father acknowledged that his criminal case was “ still ongoing ” at th e time o f the de novo hea ri ng and testif ied, “ I have to p lead the Fifth on tha t, because it hasn ’ t

— nothing ’ s progressed yet, a nd I have no answers for that yet. So I ’ d like to just p lead m y Fifth on that. No further questions. ” Father also testified that he had “ no idea ” as to th e nature of t he specific allegations against him , a lthough he knew that he was being charged with a ggr avated sexual assault

. Father called Tammy ’ s allegati ons “ false ” and invoked the Fi fth Amendment in
response to specific quest ions regarding whether he h ad vaginally penetrated her , anally penetrated her , and orally penetrated her. Regarding a separa t e outcr y by Zachary that Father13 had put him “ in an uncomfortable position, ” Father testifie d, “ I haven ’ t seen the child for so many years, and anything he co uld have [] s aid in the investigator room, I ha ve n o idea. ” Foster Mother testified that she had f o ur other children in her home in addition to Charlie, ages twelve, ten, five, and one

- and

- a - half. They live in a five

- bedroom house, and Charlie has his o wn bedroom. Fo ster Mother works at home, raising the children. Her hus band works “ in tech ” for IBM , and he is Charlie ’ s “ favorite person i n the universe

. ” Foster Mother testified that Charl ie is also “ super attached ” to her other children and described in detail their interactions playing together

. Foste r Mother homeschools her older children and had already started to educate Charlie with flash cards, sounds, shape s, and colors. Regarding their socialization of Charlie, Foster Mother testified that th ey had “ an amaz ing neighborhood ” where the children w ere all close and that Charlie had “ little budd i es in Sunday School ” at their church. The foste r parents also initiated visits with C harlie ’ s siblings

. Foster Mother testified that they have “ never mis se d an opportun ity of trying to get those kids togeth er ” and that the visits “ go really well in gene r al. ” Foster Mother added that if they adopted Charlie, they intended to continue t he sibling visits.

“ James ” (a pseudonym), one of the adoptive parents o f Charlie’s thr ee siblings , testified that he and his husband had five children, the three siblings t h at had been re moved from Mother and two others. James explained that the three siblings originally had been placed with another family but were r emoved f ro m that home a fter allegations of abuse arose . They wer e then place d with James and his husband

. A f t er they learned that Charlie w as available for placement , they expressed a willingness to have him li ve with them

. Charlie was placed with the foster pa re nts instead

. James testified that Charlie ’ s visits with h is siblings “ were fine, ” although he thou g ht that the foster parents could sometimes be “ hovering ” and “ overbearing ” during the14 visits. James believed that it was important for Charlie to be pla c ed with his sib lings and that he and his husband had significant suppo rt from their friends and famil y to hel p them raise Charlie

. Regarding Tammy ’ s outcry against Father, James testified that the allegations were sexual abuse, specifically penetration, wh en Tammy was se ven years old. He recoun ted that Tamm y was “ doing amaz ing ” right now but that she had required “ extensive, multiple types of therapy sessions to help with the trauma of sexual abuse. ” James testified that he had conversations with Tammy ab ou t what had ha ppened to her and that he believed wha t she had told hi m. She had identified Father a s the person who had abused her, and she had never changed her position abo ut what h e had done to her. James had never found Tammy to be a liar and had no r eas on to disb elieve her account of the abuse

. Jame s would not trust a ny of his children to be alon e with Father, and he believed it was in Charlie ’ s best interest for Father ’ s parental rights to be terminated. Stephanie Pino, the case manager for the a do ption agency that licensed James and his husband, t estified that she h ad been involved in placing th e siblings in their home. According to Pino, James and his husband had never “ wavered in their desire for [Charlie] to be in their home ” and wanted all f ou r siblin gs t o live to gether. Pino also testified t hat there were no s afety concerns with their home , that it was suitable for a sixth child in addition to the five they already had , and that they had received extensive training through the agency regard in g caregiving for children . Pino had “ no concerns w hatsoever ” that the y would be able to meet Charli e ’ s needs.
Dr. Scott Hammel , a child psychologist, testified about child hood attachment and bonding to caregivers

. Dr. Hammel brie fl y observed Ch arlie with the foster parents but did not evaluate them o r any one else involved in the case

. Based on his lim i ted observations , he15 believed there was “ some sort of attachment ” between Charlie and the foster parents, although he could not sp ec ify the degre e of attachment.

Endangerment
E ndangerment means e xposing a child to loss or injury or jeopardizing a chi l d’s emotional or physical well

- being. See Texas Dep’t of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); A.C. , 577 S.W.3d at 698

- 99. A finding o f endangerment requires more than the threat of me taphysical injury or possible ill effects from a less

- than

- ideal family environment, but the Department does not have to prove that the conduct was directed at the child or that the ch il d suffered an actual injury. See I n re E.N.C. , 3 84 S.W.3d 796, 803 (T ex. 2012); A.C. , 577 S.W.3d at
699. Subsection (D) “ f ocuses on the child’s environment and may be utilized as a ground for termination when the parent has ‘knowingly placed or knowingl y allowed the child to remain in cond itions or surr oundings which endang er the physical or emotional well

- being of the child

. ’” In re
J.W

. , 645 S.W.3d 726, 749 (Tex. 2022) (quoting Tex. Fam. Code § 161.001(b)(1)(D)). Subsection (E) focuses on a parent’s co nduct an d “ allows for termination o f parental rig hts if clear and

conv incing evidence supports that the parent ‘engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well

- being of t he child.’ ” In re N.G., 577 S.W.3d a t 234 (quoting Tex. Fam. Code § 161 .001(b)(1)(E)). In this case, we will focus our an a lysis on (E). “Under subsection (E), the cause of the danger to the child must be the parent’s conduct alone, as evidenced not on ly b y the pare nt’s actions but also by the parent’s omission or failure to act.” C.B. v. Texas Dep’t of Fam. & Protective
Se r vs. , 458 S.W.3d 576, 582 (Tex. App.

— El Paso 2014, pet. denied). “Additionally, termination under subsection (E) must be based on mo re t han a si ngle act or omission; a vol untary, del iberate, and conscious c ourse of conduct by the parent is required.” Id

.16 “The conduct to be examined includes what the parents did both before and after the child was born.” Id

. Because “endangering conduct i s not limited to actions directed to wards th e child,” it “ may include the parent’s actions before the child’s birth, w h ile the parent had custody of older children

. . . . ” In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009) (citing Boyd , 727 S.W.2d at 533)

. “ Sexual abuse is conduct that endangers a chi ld ’ s physical or emotional well

- being

. ” In re G.M. , 649 S.W.3d 801 , 809 ( T ex. App.

— El Paso 2022, no pet.) ; see also In re A.B. , 125 S.W.3d 769 , 775 (Tex. App.

— T exarkana 2003, pet. denied) ( “ It is beyond questi on that sexual abuse is conduct that endangers a child ’ s physical or emotional well

- being. ” )

. Moreover, evidence of abu s e committed against one child can support a finding of endanger ment against other children who might later discover the abuse or be abu se d them selves , even if the other children wer e not yet born at the time of the abus e
. S ee In re T.L.E. , 579 S.W.3d 616 , 625 (Tex. App.

— Houston [ 14 th Dist.] 2 019, pet. denied); In re E.A.G. , 373 S.W.3d 129, 143 (Tex. App.

— San Antonio 2012, pet. denied) ; I n re R.W

. , 129 S.W.3d 732 , 742 (Tex. App.

— Fort Worth 2004, pet. denied) ; see also In re L.J.H. , No. 05

- 21

- 00183

- CV, 2021 WL 4260769, at *12 (Tex. App.

— Dallas Sept. 20, 2021, no pet.) (mem. op.) ( “ [ P ] redatory or harmful conduct directed at one child will su pp ort te rmination of parental rights as to a d ifferent child, becaus e all children at risk for the same conduct by the s a me predator

are endangered. ” ). Here, t he Department presented evidence that Father sexually a ssaulted his stepdaughter Tammy vagi na ll y, a na lly, and orally , when she was six or s even years old

. Copies of
t he probable

- cause affidavit, the indictment, and T a mmy ’ s CA C interview were all admitted into evidence at the de novo hearing. O ne of Charlie ’ s guar dian s ad litem testif ied that he wa tched Tammy ’ s interview twice , “ believe d wha t she was saying , ” “ believed the abuse that she suffered , ” and thought that th e abuse “ would make it dangerous for [Charlie] to be with his dad.” One of Tammy ’ s adopted parents , James, testified that he had co nv ersati ons with Tammy about what had17 happene d to her , that he believed what she had told him , that s he had identified Fathe r as the person who had abused her, and that she had never changed her position about what Father had done to her. James had never fo und Ta mmy to be a liar , had no reason to dis believ e her account of the abuse , and would not trust any of his children to b e alone with Father

. Additionally, one of th e Department

casewor kers testified that Tammy ’ s outcry had never changed and that the o ut cry wa s concerning to her “ because if [Charl ie] were to be placed in the same home, that could potentially happen to him

a s well.” Father argues that the evidence is insufficient because he testified that the allegations were false , no other witness had “ p ersona l knowledge ” of the allegations , and a lthough the indictment “ sets forth some detail, [] it is merely a pleading and only evidenc e that allegations were made, not that they were true. ” However, the district court could have reasonably inferred tha t the
in dictment , when combined with the other evi dence summarized above, including Tammy ’ s CAC interview , supported a findi n g that Father had sexually assaulted Tammy as alleged. S ee In re K.A.R. , No. 07

- 22

- 00157

- CV , 2022 WL 3684643 , at *2 (Tex. App.

— Ama ri llo Au g. 25, 20 22, pet. denied) (mem. op.) ( explaining that although indictments do not establish guilt, they “ issue upon a grand jury finding probable cause to believe a crime occu rred ” and that “ [ p ] robable cause reflects the presence of evidence indicating a f air p robability about the occurrence o f the act in question ” )

. Moreover, when asked about each specific allegation i n the indictment, Father invoked his Fifth Amendment privilege against self

- incrimination. In a civil case, a fac tfinder may draw an adver se in ference against a party who invok es the Fifth Amendment. In re C.J.F. , 134 S.W.3d 343 , 35 2 (Tex. App.

— Amarillo 2003, pet. denied). Thus, the district court as factfinder was permitted to disbelieve Father ’ s claim that the allegations were false and t o i nf er that he committed the offense s against Tammy as alleged and that Charlie was endangered by Father ’ s abusive conduct

. See Murray v. Texas Dep ’ t of Fam

. & Protective Serv s
. , 294 S.W.3d 360 , 367 (Tex. App.

— Austin 2009, no pet.).18 We c onclude that t he above evidence is legally and factually sufficient to support the trial court’s findings that Father engaged in a voluntary, deliberate, and conscious course of conduct that endangered C harl ie ’s physical or emotional well

- bei ng. See Tex

. Fam. Code § 161.001(b)(1)(E).
Be cause Section 161.001 requires proof of only one statutory predicate ground to support termination , see In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003), we need not consider wheth er the evidence is sufficient to pr ove statu tor y ground (D) , see Tex. R. App. P. 47.1.
We ov erru le Father ’ s second and third issues.

Best interest
We review a fact finder’s b e st

- interest finding in l ight of the non

- exhaustive list of considerations set out in Holley v. Adams , which include the ch il d’s wishes, the child’s emotiona l and physi cal needs now and in the future, emotional or physical danger to the child now and in th e future, the parenting a bilities of the parties seeking custody, programs available to help those parties, plans for th e c hi ld by the parties seeking custod y, the stab ility of the proposed placement, the parent’s acts or omissi ons indicating tha t the pare n t

- child relationship is improper, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371

– 72 (Tex. 1976); see A.C

. , 56 0 S.W.3d at 631; In re
E.N.C. , 3 84 S.W.3d a t 807; C.H. , 89 S.W.3d at 27. The Holley factors are not exhaustive, not all
f actors mu s t be proved, and a lack o f evidence about some of the factors does not “preclude a factfinder from reasonably forming a str on g conviction or belief that ter mination is in the child’s best interest, particularly if the evidence were undisputed tha t the par e ntal relationship endange red the safety of the child.” C.H. , 89 S.W.3d at 27. “We must consider ‘the totality of the circum st ances in light of the Holley factors’ to determine whether sufficient evidence supports” the best

- interest finding. I n re J.M.G

. , 608 S.W.3d 51, 54 (Tex. Ap p.

— San Antonio 2020, pet. denied) (quoting In re19 B.F. , No. 02

- 07

- 00334

- CV, 2008 WL 902790, at *11 (T ex. App.

— Fort Worth Apr. 3, 2008, no pet.) (mem. op.)).
In this case, some evidence was contrary to the district court’s find i ng that termination of Father ’ s parental rights was in Charlie ’ s best interest , including evidence that Father lo ved Cha rl ie, wanted Charlie to have a relat ionship with his siblings, and had engaged in some
court

- ordered services in an effort to be reunit e d with Charlie. However, most of the evidence in the record supports the district court’s finding. I n addition to the evid en ce that Father sexually assau lted Charlie ’ s sister, discussed above, there was also evidence presented that Charlie had been plac e d with his foster parents his entire life , that they loved and intended to adopt him, and that their home

was t h e only home Ch arlie had ever know n; that Ch arlie was bonded to his foster parents and their biologica l children and that because of this bond, i t would be detrimental to his emotional well

- bei ng to remove him from their care ; and that the foster parents ha d strong soc ia l su pport from their family

a nd their community . The Department also presented evidence that Father had refused to allow the
De p a rtment to assess the sa fety of his home , to meet with the two most recent caseworkers , and to submit to all the drug test s r eq uired by the Department ; that Father had no role at all in Charlie ’ s life during the entirety of the case due to the allegations a gainst him ; and that Father had an uncertain future because of those allegations , including the possibility of incarceration, if convicted

. Viewing the totality of th e above evid en ce in the light most fa vorable to the trial

c ourt’s findin g, we conclude t hat a reasonable factfinder could form a firm belief or conviction that termination of Father’s parental rights was in the best interest of Charlie

. Acc ordingly, the e vidence is le ga lly sufficient to suppo rt t he best

- interest finding. Simil arly, we are u nable to say that the evidence contrary to the finding is “so significant that the factfinder could not have formed a firm belief or conviction” that ter mination of Fat her’s parental r ights was in t he best i nterest of Charlie

. Accordingly, th e evidence is also factually sufficient to support the finding.20 We o verrule Father ’ s fourth issue.

CONCLUSION
We affirm the district court ’ s order terminating Fat her ’ s parental r ights

.

__ __ ________________________ ____________ __ Gisela D. Triana , Justice Before Justices Baker, Triana, and Smith Affirmed Filed: November 30, 2023