NUMBER 13-13-00468-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF A.B., D.B. AND D.B., CHILDREN

On appeal from the 25th District Court

of Lavaca County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides, and Longoria

Memorandum Opinion by Justice Benavides

By two issues, appellant Darrell B. (“Father”)1claims the evidence used to 

terminate his parental rights over D.B. was insufficient to support termination. We 

affirm. 

 

1

 We will use initials and descriptive words such as “Mother” and “Father” to identify the parties 

in this case to protect the privacy of the children involved in this matter. See TEX. R. APP. P. 9.8. For 

reference throughout this opinion, the appellant Darrell B. will be referred to as “Father”; Rachel B. is 

referred to as “Mother”; Mother’s boyfriend, Chris W., is “Boyfriend”; and Mother’s sister is “Aunt.” 
2

I. FACTUAL BACKGROUND

On June 16, 2012, the Polk County Sheriff’s Department was called to Rachel 

B.’s (“Mother’s”) home on a report that there was a domestic dispute. Mother was the 

parent of daughter A.B. and sons D.B. and D.B. (“K.B.”),

2

and she lived with her 

boyfriend, Chris W. (“Boyfriend”). The sheriff’s office was also informed that D.B. may 

have been recently abused. 

Deputy Terry Valka testified that when he arrived at the home, Boyfriend had left 

the home to go to a nearby Valero gas station. Deputy Valka located Boyfriend at the 

gas station and returned to the home with him to further question him and Mother. 

Deputy Valka deduced that both adults were intoxicated. Deputy Valka asked to 

examine D.B., Mother’s seven-year-old son, but Mother refused. He then asked to 

search Mother’s vehicle, and Mother agreed. Deputy Valka found methamphetamine in 

the car. After returning from the car, Deputy Valka again asked to examine D.B.; this 

time, Mother consented. Deputy Valka testified that he saw severe bruising on D.B.’s 

backside. He described the bruising as “pointing down like a handprint, with the five 

fingers, and it was already purple.” He further testified that “there was another large 

bruise on top of [D.B.’s] buttocks and like a finger mark behind the child’s ear where the 

child said his ear was ringing.” The couple was arrested for possession of a controlled 

substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). Boyfriend

was taken to the Polk County jail, while Mother was allowed to accompany her sons 

D.B. and K.B. to the emergency room for further medical examination.3 

 

2

 Both sons’ initials are D.B. To avoid confusion, we will refer to the younger son as “K.B.” Only 

D.B. is the subject of this appeal.

3

 Mother’s daughter, ten-year-old A.B., lived with Mother’s sister (“Aunt”) at the time and was not 

present at the home.
3

The sheriff’s office called the Texas Department of Family and Protective 

Services (the “Department”) to the emergency room. Department investigator Rachel 

Drake went to the hospital and learned that Boyfriend had beaten D.B. because he and 

his four-year-old little brother K.B. “had stuck their fingers in the bag of meth and tasted 

it and said it was salty and they got in trouble for that.” Investigator Drake also noted 

that D.B. had a rash on the back of his neck and on his stomach, and was unkempt, 

dirty, and covered in insect bites.

This was the fourth time the Department had received a referral for Mother. 

Mother had previously been investigated in 2007, 2009, and 2011. In 2007, the 

Department’s investigation revealed that Mother had been arrested for possessing 

crack cocaine in her vehicle, and she did not have a stable residence for her children, 

A.B. and D.B., at the time. In 2009, the Department again discovered that Mother was 

abusing cocaine and that her husband, Father, was physically abusive to her. Mother

was referred to Family-Based Safety Services at this time, which included counseling, 

drug treatment, and random drug testing. In 2011, Mother and Boyfriend were 

suspected of smoking marijuana in their apartment while D.B. and his little brother K.B. 

were playing in the apartment parking lot unattended. Because both Mother and 

Boyfriend tested negative for drugs, however, the Department closed this investigation. 

Based on the 2012 incident, the Department began proceedings to terminate 

Mother’s parental rights, as well as the parental rights of the children’s fathers.4 Father, 

the appellant in this case and the biological father of D.B., was incarcerated in the 

 

4

 The three children had different fathers. A.B.’s father, Steve W., lived in Alabama. D.B.’s 

father, Darrell B., is the “Father” in this opinion. The court made findings at trial that K.B.’s father was 

deceased.
4

Lavaca County jail at this time. He had been convicted of burglary of a building and 

was serving a two-year jail sentence. See TEX. PENAL CODE ANN. § 30.02 (West 2011). 

He had a prior criminal history, as well.

At the termination hearing, Mother testified that Father had, at different times 

during their marriage, pulled her hair and hit or punched her. At one point he broke 

some of her ribs. Some of these instances of violence occurred in front of her children, 

including D.B. Mother also testified that she and Father used drugs “most of the time” 

they were together when “he wasn’t incarcerated.” Dawn S., Mother’s sister (“Aunt”), 

testified that Mother and Father’s relationship “has always been very abusive” and that 

Father “used to beat [Mother] repeatedly when they were together.” Aunt also testified 

that Father had once ripped Mother’s hair out of one side of her head, and that D.B. had 

seen Father smash in a car’s windshield. Aunt stated that, despite the frequent 

beatings, Mother refused to press charges against Father. Although Father was 

present with his attorney throughout the termination proceedings,

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he did not testify at 

trial. 

The trial court terminated Mother’s and Father’s parental rights.6 Father filed this 

appeal.

II. STANDARD OF REVIEW & APPLICABLE LAW

A court may order the termination of a parent-child relationship only if it is shown 

by clear and convincing evidence that a parent has met at least one of the statutory 

 

5

 At the time of the proceedings, Father was incarcerated at the Mineral Wells Pre-Parole 

Transfer Facility in Mineral Wells, Texas. The trial court judge issued a bench warrant authorizing Father 

to be transferred to the Lavaca County Courthouse to attend the termination hearing.

6

 The trial court also terminated the rights of A.B.’s father, Steve W., who resided in Alabama. 

The father of K.B., as previously noted, was deceased. Neither Mother nor Steve W. appeal the 

termination of their parental rights.
5

factors listed in the family code, coupled with an additional finding by clear and 

convincing evidence that termination is in the child’s best interest. See TEX. FAM. CODE 

ANN. § 161.001 (West 2008); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the 

two-prong test in deciding parental rights termination and that one act or omission of 

conduct satisfies the first prong); In re E.M.N., 221 S.W.3d 815, 820–21 (Tex. App.—

Fort Worth 2007, no pet.). 

In a legal sufficiency review:

a court should look at 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 finding was true. To give appropriate 

deference to the factfinder's conclusions and the role of a court conducting 

a legal sufficiency review, looking at the evidence in the light most 

favorable to the judgment means that a reviewing court must assume that 

the factfinder resolved disputed facts in favor of its finding if a reasonable 

factfinder could do so. A corollary to this requirement is that a court 

should disregard all evidence that a reasonable factfinder could have 

disbelieved or found to have been incredible. This does not mean that a 

court must disregard all evidence that does not support the finding. 

Disregarding undisputed facts that do not support the finding could skew 

the analysis of whether there is clear and convincing evidence.

In re J.F.C., 96 S.W.3d at 266. Clear and convincing evidence is described as “that 

measure or degree of proof which 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 2011). 

In reviewing challenges to the factual sufficiency of the evidence in a termination 

proceeding, appellate courts should “inquire ‘whether the evidence is such that a 

factfinder could reasonably form a firm belief or conviction about the truth of 

the . . . allegations’” from the entire record. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 

2006) (per curiam) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). This heightened 
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standard of review is mandated not only by the family code, see TEX. FAM. CODE ANN. § 

161.001, but also by the Due Process Clause of the United States Constitution. In re 

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 

753–54 (1982)). We strictly construe involuntary termination statutes in favor of the 

parent. Id.

The Texas Supreme Court has provided a widely-cited, non-exhaustive list of 

factors that courts may consider in ascertaining the best interests of a child. See Holley 

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Among them are: 

(1) the desires of the child;

(2) emotional and physical needs of the child now and in the future;

(3) emotional and physical danger to the child now and in the future;

(4) parental abilities of individuals seeking custody;

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

child;

(6) plans for the child by these individuals or by the agency seeking custody;

(7) stability of the home or proposed placement;

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

parent-child relationship is not a proper one; and

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

Id.

Aside from these listed factors, we must take into account other considerations 

under an elevated standard of review because a “parental rights termination proceeding 

encumbers a value ‘far more precious than any property right’ and is consequently 

governed by special rules.” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting 

Santosky, 455 U.S. at 758). In these cases, we are “faced not with the ordinary dispute 
7

about how to allocate money in a contract or tort action,” but instead, we must decide 

how to reconcile “a parent's desire to raise [the] child with the State's responsibility to 

promote the child's best interest.” Id. 

III. DISCUSSION

Father contends that the evidence is legally and factually insufficient to support 

termination of his parental rights under section 161.001(1)(D) and (E) of the Texas 

Family Code because he was incarcerated on the day D.B. was removed from Mother’s 

care. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E). Father argues that that it was 

Mother and Boyfriend’s behavior that prompted the termination proceedings, not his. 

Therefore, he asserts that his parental rights should not have been terminated by the 

court. 

Here, the trial court found by clear and convincing evidence that Father:

(1) knowingly placed or knowingly allowed [D.B.] to remain in conditions or 

surroundings which endanger the physical or emotional well-being of 

[D.B.], see id. § 161.001(1)(D); and

(2) engaged in conduct or knowingly placed [D.B.] with persons who 

engaged in conduct which endangers the physical or emotional wellbeing of the child, see id. § 161.001(1)(E).

Father’s argument, however, fails to take into account Father’s behavior during 

the time he lived with Mother. There was ample evidence that Father was physically 

abusive to Mother during their marriage. Domestic violence and lack of self-control can 

be considered evidence of endangerment to children. In re B.J.B., 546 S.W.2d 674, 

677 (Tex. App.—Texarkana 1977, writ ref’d n.r.e.). “The father's demonstrated want of 

self control and propensity for aggression and vicious, cruel, brutal violence against one 

who did not conform to his will projected a threat that might reasonably be construed as 
8

endangering the physical well-being of children in his care, custody and control.” Id.; 

see also Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. 

App.—Houston [1st Dist.] 2009, pet. denied). Mother testified that “there have been 

times we would fight and then get back together. [Father] has pulled my hair; he has hit 

me; he has punched me. At one point he did break a couple of my ribs.” Significantly, 

some of this violence occurred in front of D.B. Aunt confirmed this behavior by her 

testimony, recalling that Father had once ripped Mother’s hair out of one side of her 

head, and that D.B. had seen Father smash in a car’s windshield. We hold that this 

evidence of domestic violence constitutes clear and convincing evidence of 

endangerment under sections 161.001(1)(D) and (E). See TEX. FAM. CODE ANN. § 

161.001(1)(D), (E).

There was also evidence that Father abused drugs with Mother. Mother told the 

court that she and Father used drugs “most of the time” they were together “when he 

wasn’t incarcerated” in the past. Illegal drug use may support termination under section 

161.001(1)(E) because it exposes the child to the possibility that the parent may be 

impaired or imprisoned. See Walker, 312 S.W.3d at 617–18. “Evidence of narcotics 

use and its effect on a parent's life and ability to parent may establish that the parent 

has engaged in an endangering course of conduct.” Id. at 618. Father’s established 

history of drug use is another factor supporting the court’s endangerment findings. 

In addition, although Father is correct that it was not his specific behavior that 

triggered the Department’s termination proceedings, Texas law holds that a parent’s 

“consistent inability to avoid criminal activity implies a conscious disregard for his 

parental responsibilities.” In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.—Houston [1st 
9

Dist.] 1998, no pet). Father’s criminal history, including his most recent conviction and 

incarceration for burglary, is an additional factor supporting the court’s findings that 

Father’s conduct endangered D.B.

Accordingly, we find there was clear and convincing evidence to show that 

Father knowingly placed or knowingly allowed D.B. to remain in conditions or 

surroundings which endangered D.B.’s physical or emotional well-being, and engaged 

in conduct or knowingly placed D.B. with persons who engaged in conduct which 

endangered D.B.’s physical or emotional well-being. See TEX. FAM. CODE ANN. § 

161.001(D), (E). We overrule Father’s issues.

As a final remark, we note that Father failed to challenge the finding that 

terminating his parental rights would not be in the best interests of the child in this 

appeal. Because Father was required to challenge both the statutory grounds and the 

best interests findings of the trial court, the failure to challenge the latter would be 

grounds to affirm the trial court’s decision by itself. See id. § 161.001(1)–(2); In re 

J.F.C., 96 S.W.3d at 261.

IV. CONCLUSION

We affirm the judgment of the trial court.

__________________________

GINA BENAVIDES,

Justice

Delivered and filed the

30th day of January, 2014.