## In the Court of Appeals Second Appellate Distri ct of Texas

at Fort Worth

_________

_ __ _______________ No. 02

- 19

- 00329

- CV

___________________________

On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323

- 106560

- 18

B efore Gabriel, Kerr and Womack, JJ. Memorandum Opin ion by Justice Womack 

### I N THE 

### I NTEREST OF 

### T.M., M.M., C.M., G.M., AND 

### G.M ., C HILDREN2 MEMORANDUM OPINION
I. I NTRODU CTION In January 2018, the Texas De partment of Family and Protective Services (Department) initiate d this proceeding to terminate the parent

– chi ld relat ionship
between G. M. (Father) and A.D. (Mother) and their five childre n

— T. M. (Timothy), M.M. (Michael), C.M. (Calvin), G.M. (Gavin), and G. M. (Gail). 1 The children ’ s paternal grandparents , B.D. (Grandfather) and P.D. (Grandmother), intervened, asking the trial c ourt to appoint them as the children ’ s manag ing conservator or , alternatively , to awa rd them possession of and acc ess to the children

. After conducting a final hearing , the trial court fou nd grounds to terminate
Father ’ s and M other ’ s parental rights under Family Code Section 161.001(b )(1 ). The

tr ial court al so foun d that the termination of Father ’ s and Mother ’ s parental rights was
in the children ’ s best interest. Based upon those findings, the trial court terminated
the parent

– child relationship betwe en Father and M o ther and the children and name d
the Department as the children ’ s managing conservator

. See Tex. Fam. Code Ann. § § 161. 001(b) , .207(a)

. The trial court further denied all r elief requested by

1 As this is a parent al

– rights termination case, w e use aliases to refer t o the childre n, the ir parents, and th eir grandparents

. See Tex. R. App. P. 9.8( b)(2) (requirin g ap pell ate courts to use al iases to ref er to min or s in parental

– r ights termination cases and, if necessary to protect the minors ’ identi ties, to als o use aliase s to refer to their parents and other family members)

.3

Grandfather and Grandmother, rende red ju dgme nt that they take nothing , and
dismissed them from this suit. Father, Grandfather, and Grand mot her timely appealed from the trial court ’ s order of termination

. 2 We a ffirm.
II. B ACK GRO U ND On Janua ry 19, 2018, shortly after Mot her gave bir th to her youngest child,
Gai l , the Department received a referr a l expressing concer ns over Gail ’ s well

- being
b ecause Mother appeared to have sustained physical injuries that would inhib it her ability to adequately care for Gail

. Tawann a Jackson, an investig ator with the Department , was assigned to inves tigate the refe rral , and she co ntacted staff at the hospital where Gail had been born in order to learn more about the worries over
Gai l ’ s welfare

. By the time Jacks on was able to reach out to th e hospit al staff , however , Mother and Gail had been discharged and were no longer at the hospital.
Mother ’ s ho spital records indicated that she l ived at a resi dence l ocated in North Richland Hills, so Jackso n we nt to that address in an effort to con tact Mother

. 3 But

w hen Jac kson arrived at the North R ichland Hills residence, no body was there, so Jackson returned the next day, again to n o avail.

2 Mot h er did not ap peal th e trial court ’ s ter m ina tion of her parental righ ts.

3 Th rou ghout th is opinion, we r efer to this specific residence simply as the

“ North R ichland H ills re sidence

. ”4

Ja ckson continued her efforts t o loc ate Mother , and a t some point during her

se arch , Jackson learned that Mother had four other child ren: Timothy, Michael,
C alvin, and Gavin. Jac k s on ’ s atte mpts to locate Mother and her children were not fr uitful , a nd sh e still had not locat ed th em by Jan uary 22, 2018, the da y the Departm ent rec eived another referral indicating that Mother had been hospitalized in
Alabam a as a result of an assault by Fa the r . Mother ’s medic al records related to that hospital visit reflect that M other told hospital personnel that Father had as saulted her
in Texas over a period o f hours by beating h er with metal bars and rods ; by b iting, kicking , and punching he r ; b y burni ng her with boiling w ater and heated tools ; and by cutting her hair. M other reported that she had eventually been able to escape Father ’s
assault , had boarded a Greyhound bu s in Dallas, and had ridden the bus to Alabama, where she had family. An examina t ion revealed that Mo ther had a fracture d right
distal u l na, two fractured ribs, a tra umat ic subdural he matoma, a spleen laceration , and
several lumbar t ransverse process fractures , as well as multiple bruises, burn wounds,
b ite marks, and lacerations.
T h e Jan uary 22 , 2018 referral contained in forma tion indicating th at Father ’ s assault of Mo ther had occu rred at the North Richland Hills residence. And while that
referr al alerted Jackson to Mother ’ s location , Jackson still did not have any in formation as to the children ’ s whereabouts

. Concerned about the children ’ s safet y, Jackson placed them on a child

- safety

- check alert lis t
. On January 23, 2018, Jackson
learned that law enforcement had located the chil dren at a motel in Gr and Prairie, and5

she w ent to th at l ocati on to assist with the children. When Jackson arrived, she
learned that Father, Grandfathe r, Grandmother, and the childr en were all present at the motel and that Father, Grandfather, a nd Grandmother had al l been placed under

arrest

— Father f

or as sa ulting Mother , and Grandfather and Grandm other for failing

to report the assault

. When Jackson met with the children at the mo tel , the y a ppeared to be healthy
and w ell fed. But w

ith Mother in a hospita l in Al aba ma and Fat her, Grandfather, and
Grandmothe r i n the cu stody of law enforcement , the Department performed an emergency removal of the children and placed them in to foster care

. The Depart ment also initiated t h is proceeding to terminate Father ’ s and Mother ’ s parent

– child relations hip with th e childr en. A short time a fter the child ren ’ s emergency

remov al, Gran dfather and Grandmother were released from cu stody pending the
resolution of charge s for failure to report a felony th at we re filed against each of
them. Father , however, re mained in custody wi th c harges of aggravated assault and of aggravated sexual assault pending against him

. 4 Jackson visited with Fathe r reg a rding potenti al placements for the childre n, and Father indicated that he wanted the children placed wit h Grandmother. Father a lso
in dicated that prio r to the children ’ s removal, he, Mother, the chil dren, Grandfather ,

4 By the time of the termination hearing, Father had pleaded guilty to the aggravated

- as sault a nd aggravated

- s exua l

- as sault charg es and had bee n sente n ced to twenty

- five years ’ confinement for each count. Grandfather ’ s and Grandmother ’ s failure

- to

- report charges w ere still pending at the time of the terminatio n hearing

.6

and Gran d mother had been living at the North Richland Hills residenc e. Grand father
and Grandmother also told Jackson that they were living at the North Richland Hills

res idence. Jack s on accompanie d law

- enforcement off icers as the y executed a warrant
at the North Richland Hills residence

. Once inside , Jac kson noticed the refrigerator
in the kitchen was “ f

ilthy ” and had no food inside other than some spo iled milk. Upon w alking fur ther i nto the North Richland Hills residence , Jackson noticed
that o n e of the downs ta irs bedrooms cont ained nothing but a mattress , which had
neither a box spring n or bedding

. Another downstairs bedr oom had only a box sprin g and m attress , with n o beddin g . Th e living room contained only a couch, a coffee table, a t el ev

ision, and a playpen, which Jackson noticed was “ filthy. ” When Jackso n went upstairs , she saw some of Father ’ s clothes, as w ell as bl ood on the

c arpe t near a window. Ja ckson also looked at the bathrooms in the residence and saw that they were “ filthy, ” that they did not have any toiletries or linens inside , and th at they did not appear to be in working order. Additi onally, the re was no electricity or running wa ter a t the res idence

. When the children first c ame in to the Department ’s care after the emergency
removal i n J anuary 2018 , Timothy was s ix years old , Michael was five , Calvin was
three , Gavin was one , and Gail was a newborn

. According to ca sework er Den ise
Dull , at th e time the childr en came into the Department ’ s care , they exhi bited
defic i encies with respect to their expected level of educationa l development ; Timothy and Michael had rotting teeth ; and none of the children were current on any of th eir7

va ccinations

. I nitiall y, t he Department placed the children across three foster homes , but within a shor t time, it was able to p lace al l fi ve ch i ldren together in the same
foster home. Not long after the Department placed the ch ildren in foster care , Timot hy began re ceiving b ehavioral

- therapy services from Angelle Harris , and during those

se ssions, he made outcries th at F athe r, Gr a ndfather, and Grandmother had abused
h im and his siblings in the North Richland Hills residenc e . As to Father, Timo t hy
told Harris that Father woul d beat him , that he had seen Father choke Mic hael , and
that Father had tried to dr o wn one of Timothy ’ s younger siblings

. Timothy referred

to Father as a “ bad man ” be cause , he told Harris , Father hurt him all th e time. Timothy also reported that Father a bused Mother. He said that Father woul d
be at Mo t her until she was blood ied, at which point Father would place Mother in th e

same room as Timot hy

. He also stated that Father forced Mother t o do “ nasty things ” with other males, and he specifically menti one d that h e had witnessed Fath er

c oerce Mother into a situation in which she was surrounded by other men ’ s priva te parts. T imothy ’ s outc r

ies regarding Gran dfather and Gran d mother were that they
would beat h im with wires and that he had witnessed Grandfathe r beat Grandmother

as w ell. Timothy also reported that Grandfa ther and Grandmother would beat
Mother. Timothy stated that Gra ndfat h er and Grandmother were in the home when
Father would beat him and that they never intervened to protect him. As he had wi th8

Father, Timothy referred to Grand fat he r as a “ bad man ” because Grandfather wou ld
be at him like Father did.
Harris also witnessed an outcry of abuse from Michael , in which he stated that Father had choked him in the presenc e of Grandfather and Grandmot her. And on

one occasio n, Har ris observed Timothy and M ichae l play ing with one another, an d as
p art of their playing, Timothy demonstrated on Michael how Father had choked
Michael

. Timo thy and Mich ael also showed how Grandfather and Grandmother
would bea t them with wires and other househol d items

. Dull witnessed out cr i es from the children that were in addition to the out cries
Harris witnessed

. Some of those additional outcrie s came f rom Timothy , and they again consisted of c laims t hat Father, Grandfath er , and Gran dmo ther had ab used t he
children in the Nort h Richland Hills residence

. According to Dull, Timothy said that
if he and his sibli ngs did not eat fast e nough, Grand mother would dump their food on top of t heir heads

. He also told Dull, as h e had told Harris, that Grand f ather and
Grandmother had been present at times when Father had beat en him but that they
had never d one anything to stop t he beatings. Timothy fur ther reported that Fathe r had s lapped re cently born Gail and that h e had spit in her face. H e also said that
Grandfather and Grandmother hit him.
Dull also witnessed additional outcries from Michael. He indicated to her that

a scar on his back was the result of Fath er stabbing him

. M ichael further r eported
that he had witnessed Father beat and stab Mother. Mic hael said that Father would9

force h im and Timothy to lay on top of Mother while they were all na ked, and he
further said that Fath er would ma ke him and Timo thy put t heir faces in M o ther ’ s private area.
Based on the children ’ s o utcries, Dull believed that th e y had observed sexual

a ctivity between adults insid e the North Richland Hills residen ce . Observations of
th at natu re wou ld c onstitute abuse , according to Dull, because a young child ’ s exp osure to sexual activity between adul ts can cause the child to experience emoti onal

trauma. A coupl e of things led Dull to concl ude that the children had been expo sed

to sexual a c t

ivity between adults : Timothy rep orted witness ing Grandfather an d Grandmother sleeping naked next to each other in bed at the North Ri chla nd Hills
residence , and both he and Michael e xhibited sexualized behaviors and sexual acting

out aft er the Depart me n t ’ s emergency r emoval. With regard t o the sexualize d be haviors , Dul l provided an example. On one occasion, Mic hael told Cal v in to pull Mic hael ’ s pants d own and then told Calvin to

t ouch Micha el ’ s private parts with his mo uth. When Dull asked Michael why he had done that, Michael responded that Father had made him per form that act on Father and Timothy when the fa mi ly lived in the North R ichlan d Hills residence , and
Michael fu rther indicated that this had been a norma l b eha vi o r in the home.
The trial court terminated Father ’ s and Mother ’ s parental rights to all five
children a nd denied all relief requ ested in Gra ndfat her ’ s and Grandmother ’ s petition
in intervent

ion. Father , Grand father , a n d Grandmother appealed.10 III. D ISCUSSION
A. Father ’ s Appeal
Father ’ s appointed appellate counsel has filed a brief stating tha t he has conducted a pr ofessional evaluation of the record and has c oncluded that there are no

ar guable ground s t o be advanced to support an appeal by Father of the trial court ’ s order terminating his parental rights and that any such appeal would be frivo lous.
Father ’ s counsel ’ s brief presents th e req uired professional evaluation of the record
d e m onstrating why , with respect to Father, there are no reversible grounds on appeal and referencing any grounds that might arguably support the appeal. See Anders v. California , 386 U.S. 738, 744 , 87 S . Ct . 139 6, 1400 (1967); see also In r e K.M. , 98 S. W. 3 d 774, 776

– 77 (Tex. App.

— Fort Worth 2003, order) (holding Anders procedure s apply in parental

- termination cases), disp. on merits , No. 2

- 01

- 349

- CV, 2003 WL 2006583 (T ex. App.

— Fort Worth May 1, 2003, no pet .) (m em. op.). Further, Father ’ s c ounsel
inform ed F ather of hi s right to request the record and to file a pro se response. See Kelly v . State , 436 S.W.3d 313, 318

– 20 (Tex . Crim. App. 2014). In addition, this court
informed Father o f these rights and gave h im the opp ortunit y to n ot i f y this court of
h is intent to respond. Fa ther has not filed a response. The Department has notified
this court that i t agrees with Father ’ s c ounsel that Father has no grounds assai ling the
trial court ’ s order of ter minatio n . In reviewing a brief that asserts an appeal is frivolous and that fulfills the requirements of Anders , this court is obligated t o undertake an independ ent11

examin ation of the record to determ ine if any arguable grounds for app eal exi st. S ee I n re C.J. , 501 S .W.3d 254, 255 (Tex. App.

— Fort Worth 2016, pets. denied) (citing Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) ). Having carefully

re viewed the r ecord , Father ’s counsel ’s b rief, and the Department ’s response , we

co nclude t h a t there are no a rguable grounds for reversal of the trial court ’s order terminating Father ’s par ental rights ; thus, we agree with Father ’s cou nsel that F ather ’s
appe al is without merit. See In re D.D. , 2 79 S.W.3d 849, 850 (Tex. App.

— Dalla s 2009,
pet. de n i ed). We will th erefore affirm the trial court ’ s or der of termination as to Father

. See Tex. R. App. P. 43.2(a). C ounsel has a continuing du ty to repres ent Father until he has exhausted h is proceedings, including possibly filing a petiti on for
review i n the supreme cour t. See In re P.M. , 520 S.W.3d 24, 27

– 28 (Tex. 2016); In re
D.T. , No. 0 2

- 17

- 00061

- CV, 2017 WL 2806323, at *1

– 3 (Tex. App.

— Fort Worth June 29, 2017, no pet.) (mem. op.).
B
. Grand father ’ s a n d Grandmother ’ s Appeal
In their cha lleng e s to th e t r ial court ’s term ination order, Grandfather and
Grandmother both present the same, single issue

. 5 They claim that the trial court
abused its d iscretion by naming the Department as the children ’s per manent

man aging conservator

. They contend that the trial court should hav e inst ead named

5 Grandfather and Grandmo ther filed se parate b rief s, bu t those briefs are i denti cal in nearly every respect; thus, we will address their issues tog ether.12

them as the children ’ s managing conservator because the evidence concl usively shows
that arrangement was in the chi ldren ’ s best inte rest
. 1
. Applicable law and standard of review The Texas Family Code creates a rebuttable presumption that a parent will be
named a child ’ s managing c onservator unless th e court finds that such a ppointment
would not be in the child ’ s best interest “becau se the a p p ointment would significantly impair the child ’ s physical health or emotional development.” Tex. F am. Code Ann. § 153.131(a

)

. But here, the t rial court terminated the parent

– child relati onship of both
pa rents
. In such cases , “the court s hall ap point a s u itable, c ompetent adult, the Department of Family and Protective Services, or a licensed child

- pla cing agency as managing conservator of the c hild.” Tex. Fam. Code Ann. § 161.207(a) ; see In re R.H. , No. 05

- 19

- 00635

- CV, 2019 WL 4875334, at * 5 (Te x. App

. — D a llas Oct. 3, 2019, no pet.) (mem. op.)

. Termination of parental rights and appointment of a non

- parent as sole managing conservator are two distinct issues, differing in elements, stand ards of proof, an d standards of review. See In re J .A.J. , 243 S. W. 3 d 611, 615

– 17 (Tex. 2007). Compare Tex. Fam. Code Ann. § 161.001 , with id. § 153.131(a)

. Unlike t h e facts necessary to support termination of parental rights, the facts n ecessary to appoi nt a

non

- parent as sole managing co nservator nee d b e estab lished by a mere preponderance of the evidence. See Tex. Fam. Code Ann. § 105.005; J.A.J. , 243 S.W.3d at 61 6 ; In re W.M. , 172 S.W.3d 718, 724 (Tex. App

. — Fort Worth 2005, no13

pet.). Likewise, the st andard of review for the appointmen t of a non

- pa re n t as so le

man aging conservator is less stringent than the standard of review for termination of parental rights. J

.A.J. , 243 S.W.3d at 616. We review a trial court ’ s appointment of a

non

- parent as sole m anaging conservator for an abuse of di scretion only

. I d. ; W.M. , 172 S.W.3d at 724. Therefore, we may reverse the trial court ’ s appoint ment of a non

parent as sole m anaging conservator only if we determine the appointment is arbitrary

or unreaso nable. J.A.J. , 2 43 S.W.3d at 616 ; In re L.G.R. , 498 S.W

. 3d 195, 20 7 (T ex. App.

— Houston [14th Dist.] 2016, pe t. denied) ; W.M. , 172 S.W.3d at 724

– 25.
Under an abuse

- of

- discretio n standard, l egal and factual sufficiency ar e not independent grounds for review , but they are re levant factors in deciding whether an abuse of d is c r etion occurred. In re E. P.C. , 381 S.W.3d 670, 687 (Tex. App.

— Fort Worth 2012, no pet.) (citing W.M. , 172 S .W.3d at 725 )

. In determining whether there
has been an abuse of discret ion because the evidence is legally or factually insufficie nt to support t h e tria l court ’ s decision, we engage in a two

- pronged inquiry: (1) d id the trial court have enough informati on upon which to exercise its discretion; an d (2) did
the trial court err in applying its discret ion? W.M. , 17 2 S.W.3d at 725. The traditional

su f f icien cy review comes into play with regard to the first question. Id. With regard to the second question, we determine, based on the elicited evidenc e, whether the trial
court made a reasonable decision

. Id. The primary consideration in determining is s u es of conserva torship is the best
interest of the child. Tex. Fam. Co de Ann. § 153.002 ; W.M. , 172 S.W.3d 7 25. In14

d etermining a child ’ s best interest in the context of a conservatorship dec ision , c ourts may use the list of Holley factors

. See W.M. , 1 72 S .W.3d at 725 (citing Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976) ) ; In re T.D.C. , 91 S.W.3d 865 , 87 3 (Tex. App.

— Fort Worth 2002, pet. denied ) ; L ong v. Long , 144 S.W.3d 64, 68 (Tex. App.

— El Paso
200 4, no pet.)

. Those factors include : ( 1 ) the des ir e s of t he child; ( 2 ) the emotional and physical needs of the child now and in the future; ( 3 ) the emotion al and physical danger to the child now and in the future; ( 4 ) the parental abilities of the in dividuals seeking custody; ( 5 ) th e programs av ai l a ble t o assist these individuals to promote the best interest of the child; ( 6 ) the plans for the child by these individuals or by the agency seeking custody; ( 7 ) the stability of the home or proposed placement; ( 8 ) the acts or omissi ons of the pa re n t whic h may indicate that the existing parent

– child relationship is not a proper one; and ( 9 ) any excuse f

or the acts or omissions of the parent.
Hol ley , 544 S.W. 2d at 372; W.M. , 172 S.W.3d at 725

– 26. These fac tors are not exhaustive ; s ome of them m ay b e ina ppli cable in specific cases, and courts may

con sider othe rs not on the list when appropria te. See W.M

. , 172 S.W.3d at 725.15

2
. Analysis
At the ou tset , w e note that there is no presumption favoring a grandparent
over other non

- parents in determining c onser vatorship. In re A.C. , 394 S.W.3d 633, 644 (Tex. App.

— Hou ston [1st Dist.] 2012 , no pet.). With that in mind, and

c onsidering the evidence elicit ed at the termination hearing in light of the relevan t Holley factors , we con clude the t rial court did n ot abu se its discretion by appointing the Department , rather than Grandfather or Grandmother , as the childr en ’ s managing

conservator upon terminating Fa ther ’ s and Mother ’ s parental rights.

a. The emotiona l and physical needs of the childre n and the emoti on al and physical danger to the children We begin with th ese Holley factor s given the considerable evidence indicating
that while the children w ere livi ng in the North Richland Hills residence , Grandfathe r and Grandmother subjected them to a pattern of c on duct t hat endangered their phy si c a l and emotional welfare

. Grandfather and Grandmother suggest that eviden ce of past conduct toward a child is not rele vant when assessing these factors

. But t h at is not so
. Evide nc e of a person ’ s past misconduct or neglect can be used to measure that p erson ’ s future conduct

. See In re B.P. E. , No. 01

- 1 6

- 00561

- CV , 2016 WL
6803 355 , at * 8 (T ex. App.

— Hou ston [1st Dist.] Nov. 17, 2016, pet . denied) (mem. op.) ; In re A

. M. , 3 85 S.W.3d 74, 82 ( Te x. App.

—

Waco 2012, pet. denied

)

. Thus, in weighing th ese Holley f

actor s , the trial court w as entitled to consider any evidence reflecting th at wh en Grandfather and Grandmother had access to the childr en in the16

past, they engaged in a p at tern of cond uct th at endangered the children ’ s phy sical and
emotional well

- being

. And t he record contains a litany of evidence that Grandfather and
Grandmother enda ngered the children. In particular, there was evidence that Grandfather and Grandmother p hys i ca lly abus ed t he children, as well as evidence that
the children witnessed violence involving Grandfather and Grandmother

. See In re J.S.

- A , No. 01

- 17

- 00491

- CV, 2018 WL 891236, at * 8 (Te x. App.

— Houston [1st Dist.]
Fe b. 15 , 2018, pet s. denied) (mem. op .) ( “ Evidence of d om estic violence in the home supports a finding that placement with the parent is likely to subject the child to emotional and physical danger now a nd in the future

. ” ) ; In re A.K. , No s . 07

- 17

- 00353

- CV, 0 7

- 17

- 00354

- CV , 2018 WL 912703, at * 5 ( Tex

. App.

—

Ama r illo F eb. 15, 2018,
p et. denied ) (mem. op.) ( “ A child ’ s exposure to domestic violence in the home is relevant when considering best interest. ” ) ; B. P. E. , 2016 WL 6803355 , at * 8

. We
discuss each of th ose categories in turn. Although th e c h ildren did not tes tify a t the hearing, evidence of their outcrie s was admitted through other means , including the testimony of Harris and Dull , who
testified abou t T imoth y ’ s and Mic hael ’ s outc ries ; a copy of forensic interviews that
h a d been performe d on Timothy an d Michael ; test imony from Department
inves tigator Jessie Davis about an investigation she conducted that included outcries from Timothy and Michael ; and tes timon y from both Dull and one of the
De partment ’ s conservatorship supervis ors , Laur en Robi ns on, regarding the17

Depar tment ’ s opposition to Grand father ’ s and Grandmother ’ s request for conservatorship of the children

. In setting forth the b ackground of th is ca se above , we ou tlined Timothy ’ s and
Michael ’ s outc ries o f abuse , and we need not dupl icate the substance of th o se o utcries
here . But we do highlight some additional evidence that relates to Grand father ’ s and
Grandmother ’ s endanger ing conduct

. Spec if ica lly, we note t hat Timothy told the
forensic i ntervie wer th at Gran dfather would beat him with a belt all over h is body and
that Grandfather and Grandmother would beat him with sticks on his arms and legs.
A dditiona ll y , Da vis testified that based on Timo thy ’ s and Mic h ael ’ s forensic
interv i ews , th e Depa rtment re ached a “ reason to believe ” disposition agai nst Grandfather and Grandmother for physical abuse of Timothy and Michael. D ull opined that based on the children ’ s outcrie s and her experience as a case wor ke r , she
believed t he ch ildren would be in physical and emotional danger if t he trial court place d them with Grandfather and Grandmother. And Robinson testif ied th at the Department opposed Gra ndfather ’ s and Gra ndmother ’ s request for conservatorship
in par t beca u s e of the c hil dren ’ s outcries that Grandfather and Grandmother had physically abused them.
Gr andfather and Grandmother a ttemp t t o discredit the e vidence showing they ph ysical ly abused the chil dren by suggesting that it is unclear whether the c h ild re n ’ s

ou t cr ies conveyed real , as opposed to imagined or dreamed , experiences. They point to a portion of Ha rris ’ s testimony that Grandmother e licited on cross

- e xamination in18

which Harris agreed that be cause she is n ot a li c ensed child psychologist, she co uld
not know whether Timothy ’ s outcries of abuse c onveyed real experiences: Q. You ’ re not a licensed child p sychol ogist either.
A. No. Q. So we really don ’ t kn ow where these things that [Timothy] was telling you cam e from, whethe r they were imaginatio n, what some adult told him, something he really witnessed, a dream, or [a] combination of [the] above; right?
A. Ye s. T o the extent that Grandfather and G randmother contend that this isolated portion
of one wit ness ’ s t estimo ny conclusively negates a fin din g that t hey physically abused
the children , we disagree

. To begin , Gr andfather and Grandmother prese nt this exchange shorn from its rel evant context , res ulting in an incompl ete and inaccurate picture of Ha r ris ’ s test

imony

. For example, o n red irect, Ha rri s confirmed that based
up on her ob servation s as Timothy ’ s behavioral therapist , sh e believed h is outc ri es had
described rea l experiences : Q. Did you obse rve anything in your interactions with [Timothy] that would sup port [Grandm other ’ s] co ntention that th is may have been imaginary or misremembered?
A. [Timothy ’ s] , often during each session when talking ab out his feelings, very tearful. And, right now, he ’ s experienced incontinence. So, yes. Q. So you bel ieve them to be true?
A. Yes.19

Q

. True experi e nc es?
A. Yes. Additionally , the isolated portion of Harris ’ s testimony that Grandfather an d Grandmother rely u pon to show tha t they did not phy sically abuse the children does
not erase all the oth er evidenc e in the rec ord concerning that issue

. In othe r words , a t

mo st, the por tion of Harris ’ s testimony upon which Grandfather and Grandmother

re ly to show they did no t phy sically abuse the children conf l icts with o ther ev

idence , including other portions o f Harris ’ s testim ony, showi ng that they did

. And as f act

finde r here, the tr

ial court could have resolved that conflict by believing the evidenc e showing that Grandfa th er and Gran dmother physically abused the children , which is a determination that we may not second

- guess . S ee Bus h v. Bush , 336 S.W .3d 722 , 730 (Tex. App.

— Houston [1 st Dist.] 2010, no pet. ) ( “ In a benc h trial, the trial court is th e sole judge of the cr ed ibility of the witnesses, ass igns the weight to be given their testimony, may accept or reject all or an y part of their testimony, and r eso lves any

co nflicts or inc onsistencies in the testimony. ” (quoting Rich v. Olah , 27 4 S.W.3d 87 8, 884 (Tex. App.

— Dall as 2008, no p et.))

. T he record also co ntains evidenc e tha t the children were exposed to violence involving Grandfath er and Grandmother in the North Richlan d Hills res ide nce . Harris testi fied that Timothy indicated that he had wi tnessed Gran d father be at ing
G randm ot her , as well as both Grandfather and Grandmo ther beat ing Mother.
Durin g his forensic intervi ew, Michael s tated that he had witnesse d Grandfather20

fight in g wi th Father

. And Timothy indicated during his forensic intervie w that he had
seen Grandmot her grab a knife and threaten to cut Mother ’ s neck

. Altho ugh a large por tion of th e evidence we have outlined above ref erences specific acts of abuse that Grandfathe r and Grandmother committed ag ainst T imothy
and Michael , th at evidence nevertheless supports a finding that granting Grandfather ’ s and Gra ndmother ’ s request for co nservat ors hip as to Calvi n, Gavin, and Gail woul d endanger their phy sical and emotional well

- being just as it would Timothy ’ s an d
Michael ’ s . See In re A.W.B. , No. 14

- 11

- 00926

- CV, 2012 WL 1048640, at * 6 (Tex. App.

— Houston [14th D ist.] Mar. 2 7, 2012, no pet

. ) (mem . o p.) ( notin g that evidence
th at a child ’ s parent abused the child ’ s seven other sibl ings can support a finding that

retu rning the child to th e par en t could result in emotional and physical danger to the child) ; c f. In re L.W. , No. 0 1

- 18

- 01025

- CV, 2019 WL 15 23124, at * 11 (Tex. App.

— Hou ston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.) (noting that “ the physical
abus e of on e child in the home s upports a finding of endangerment as to the other children also present in the home. ” ) ; I n re J.W.M. , 15 3 S.W. 3 d 5 41, 548 (T ex. App.

— Amari llo 2004, pet. denied ) ( “ The evide nce offered to prove the grounds for
termination is also relevant in determining if termination is in the children ’ s best
interest ” )

. W e al so reiterate that Dull testified that the physic al and emo tional wel l

being of all fiv e of the children would be end ange red if they were plac ed wi th
Grandfather and Grandmo t her. And Robin son testified that the Department21

opposed giving Grandfather and Grandmother conservators hip over any of the
ch ild ren based on the outcries of abuse against them.
In cont rast to the substantial evidence refl ecting that Grandfather and
Grand mother posed a danger to the children’s physical and em otional well

- being,
Grandfather an d Grandmother d o not a sse rt, let al o ne refer us to an y evidence showing , that the Depar tment posed any such r isk

. Given the e vidence adduced at the termination hearin g , t he trial court could have reasonably concluded that these
factor s weigh ed heavily in favor of a find ing tha t n aming the Department, rather than
Grand father and Grandmother, as the children ’ s man aging conservato r was in the
children ’ s best interest.

b

. Parenting abilit

ies of G randfather and Grandmother; s tability of the home ; and t he act s or omissio ns of Gr

and f ath er an d Gra ndmother
In thi s case, t hese t hree Holley factor s are closely related t o the previous two
. As w e have noted, t he evidence refle c ts that during the Department ’ s investigation throughout this case, Father , Grandfather , and Grandmother report ed that prior to the c hildren ’ s r emoval, Father, Mother, Grandfather, Grandmother, and the children
all lived to gether at the North Richland Hill s residence

. We described above some of
the evidence showing that the childr en were bo th physically abused by Grandfather
and Grandmother and exposed to violence involving Grand father and Grandmoth er

w hile residing in that home

. But there is also evidence that Grandfather and
Grandmother failed to protect the chi ldren f rom signif

ica nt abus e Father infl icted22

upon them and Mother in the home

. Cf. In re O.E.R. , 573 S.W.3d 896, 908 (Tex. App.

— El Paso 2019, no pet.) ( noti ng th at tri al court could have weighed acts

- or

omissions Holley factor in favor of termination based on e vidence sh owi ng moth er
repe ated ly exposed children to domestic violence by engaging in multiple rel ationships
with men who physical ly abused her) ; In r e R.J

. , 579 S.W.3d 97, 116 (Tex. App.

— Houston [1st Dist.] 2019, pet
. denied ) (notin g that evidence of dom estic viol enc e in
th e home is rel evant to the parenting

- abilities and sta bility

- of

- the

- home Holley factor s ). We need not repeat th e evidence of Father ’ s ab use of the children that we have already referenced in setting out the backgro und of this case

. In addition t o t hat
evi dence, the re cord shows that during their respective forensic inter views , Timothy
and Michael described acts of abuse that Father inflic ted up on them

. Michael stated
that Father forced him to say, “ I hate you mama, ” and then hit him in the nose with a
shoe. Timothy stated that h e saw blood coming from Michael ’ s nose after Father hit
Michael with a shoe. Timo thy reported that Father hit him with a wire, a bar, and a
broom , a nd he showed the for en si c interv iew er mark s and bruises on his arm that had
resulted from Father ’ s hitting him with the br oom . And as previously noted, in speaking with Ha rris, Timothy referre d to Father as a “ bad man ” because Father hurt
him all the time.
As to the childr en ’ s expo sure to Fathe r ’ s physical abuse of Mother in the North
Richland Hills residence , the evidence includes Mother ’ s ho spital re cords , whi ch , as we have a lready outline d, reflect that she susta ined multiple, s e rious injuries as a re sult23

of an as sault b y Fat her shortly after Gail was born. In addition, the trial court admitted two judgments of conviction reflecting that Father was convicted of aggravated assa u lt and aggr avated sexual as sault aga inst Mother. Furt h er , dur in g his
foren sic interview, Michael stated that he had witn essed Father hit Mother in the face
with a wir e , with a broom, and with his hand in t he North Richland Hills residence
and that Mother had to wipe blood from her face

. Du ring h is forensi c interview, Timothy stated that Father would jump on Mother ’ s head , that Father would elbow
Mother in the mouth , that Father would hit Mother with a needle and a board, and
that Father would burn Mother with cigare ttes until her eyes rol le d in t he back of h er head. Timothy further reported that he saw blood all over the house. In light of the above, the trial court c ould have reasonably concluded that
Grandfather and Grandmoth er w ere aware of Fathe r ’ s abuse of t he chil dren, as w el l

as t he children ’ s exposure to Father ’ s abuse of Mother , but did nothing to protect the
children from it

. Add itionally , according to Grand mother ’ s testimon y, she and
Grandfather wer e the ones who had actually raised the c hildren, not F ather a nd
Mother. The tr ial court could have considered that testimony and weigh ed it in light

o f Jackson ’ s testimony that when she went ins ide th e North Richland Hills residence , it was filthy, had no runni ng water or electricit y, did not ha ve a fun cti on ing b at h room, was not pro perly stocked with food , and did not have sufficient bedding for the four
adults and five children wh o were living there

. And based on its weighing of that
evidence , the trial court coul d have re ason ably con cluded tha t Grandfather and24

Grandmother had not demonstrated an ability to adequ ately parent the children or to provide them with a stable home

. We con clude that t he trial court could have reasonably found that t he parenting

- abilities , s tabil ity

- o f

- the

- ho me, and ac ts

- or

- om issio ns factors all weighed in favor of a finding that naming the Department, rather than Grandfather and Grandmother, as the children ’s managing conservator was in the children’s best
interest.

c

. Children ’

s desires
Altho ugh n one of t he childre n testified a t the termination hearing , and although some of the children were too young to directly voice their desires concerning conservato rship , there was other evidence that the trial court could ha ve considered when ana lyzing t he ch ildren ’ s desires w ith respect t o conser

vatorship

. For

e xam ple, w hen Dull asked Timothy if he felt connected to Grandfather and Grandmother, he said he did not. Conversely , when Dull asked Timothy to name the people he felt connect ed to, h e rep lied tha t he felt connected to his foster pare nts, to his CASA work er, 6 and to Dull , and when D u ll asked him why, he said , “ B ecause I ’ m not in that bad place an ymore. ” Dull also testified that when she asked the children
where the y wanted to l i ve, “ the y said the y wanted to stay in [thei r foster h ome]

6 “ CASA ” stand s for “ court

- appointed special advocate. ” See In re I.D.J. , No. 02

- 11

- 003 67

- CV, 2012 WL 21 35579, at * 3 (Tex. App.

— Fort Worth June 14, 201 2, no pet.) (mem. op.).25

because it ’ s safe an d they liked it there and they did not get hit. ” W hen explaining why the Departme nt believed termination of Father ’ s and Mot her ’ s parental rights
and d en ial of Grandf

a ther ’ s and Grand mother ’ s request for conservatorship was in
the children ’ s best inter est , Dull stated the reason was because the children had

“ expressed that they want [ed] to be in a loving family that doesn ’ t hurt them

. ” And

t he children ’ s f

o ster m other test ified that the children called her “ mom. ” Based on
this ev idence, the trial court c ould have rea sonably found that this fact or wei gh ed in
favor of a finding that na ming the Department, a s opposed to Grandfa ther and
Grandm o ther, as the chi ldren ’ s managing conservator was in their best inter est.

d. P lans for the children
Grandfather an d Grandmother assert that their plans for the children in the event that they w ere awarded conservators hip demonstrate tha t appointing th e m as th e children ’ s managing conservator was in their best interest

. They point to
Grandm oth er ’ s testimony that sh e p lanned to enroll Timothy and Michael in s chool
once Mic hae l was o ld enough bec ause she wanted both ch ildren to at t end school together. They also point to Grandmother ’ s testimony that the chi ldren are Romani

a nd that she planned to raise the m in the Romani culture

. An d they ass ert that the
children could remain together if they were placed with them. Despite Grandmother ’ s t estimony, ho wever , the trial court did not have to
conclude t hat Grandfather ’ s an d Grandmother ’ s plans f or t he chi ldren were in t he

c hildren ’ s best interest , particularly when we ighed agains t the Department ’ s plans.26

Grandmot her testified that sh e planned to enroll Timothy and Mic h ael in school in
the future. The trial court could hav e viewed this testimony wit h a hi gh degree of skepti cism based on t he evidence sho wing that Grandmother had never enrolled any of the children in school despite the fact that , acco rding to her own testimony, she
and Grandfat her were the ones who were actually raising the ch ildre n . This stands in

c ontra s t t o the testimony of the children ’ s foster mother, who testified that while living with their fo ster fam ily, Timothy and Michael had been attending schoo l and were doing “ really go od ” at i t. Addit ional ly, as noted, the Department h a d placed the children to gether in the
same foster home , and the y had been living there for nearly a year before the termination hearing. While in the fo ster home, Timothy, Mic hael , Calvi n , and Gavin
had rece ived t herapeutic services that included trauma therapy, behavi oral thera py, psychiatric services , tra uma

- based re lationship intervention , and speech the rapy
. According to Robinson, t he Depar tment planne d f or an unre lated a doption of the children together as a sibling group of five, and the children ’ s foster mother testified

t hat she and her husband would consi der adopting th e children if that became an optio n. Fu rther, R obinson testifi ed th at th e children would need t o continue receiving traum a counseling, behavioral therapy, and trauma

- based relation shi p intervention in the future. Ro binson stated that the children were receiving those
services i n the fo ster home, indi catin g tha t the foster family was adequately meeting
the children ’ s therap eutic needs and would continue to do so in the future

. And27

Robinson confirm ed that the Depart ment would provide those servic es to the
child ren in the f

u ture in th e event the child ren w ere adopted. In light of the above, we conclude that the trial court could have re asonably
determined that this factor weighed in favor of its finding that naming the Department, rathe r than Grandfather and Gran dmother, as the childre n’s m anagi ng conservator was in the children’s best interest.

e . Children ’

s culture Finally, though it is not among the Holley factors, Grandfather and
Grand mot her assert that the fact that the children are Romani should weigh in fav or of aw arding conserva torsh ip to their Romani grandparents , who can raise them in a
manner consistent with Romani culture

. In doing so, Grandfather and Grandmother analogiz e t heir f

amily ’ s Ro mani cultur e to the unique conside ratio ns at issue in child custody cases involving an Indian child , to which the Indian Child Welfare Act (ICWA ) applies. See 25 U.S.C.A. § 1912(a). T hey suggest that for the sa me re as o ns
I CWA provides spec i al co nsi derations in chi ld cus tody cases involving Indian
children , they should be awarded conservatorship of the children so they can be raised
in thei r Romani cu lture.
We de c line Grandfather ’ s and Gra n dmoth er ’ s invitation to analogize this case

to one involving an Indian chil d

. ICWA is a federal statute , and Grandfather and
Grandmother have cit ed us to no analogous s tatute providing similar protections in child custody cases involving children from a R omani ba ckground. Further ,28

Grandfather an d Gr andm other have cited us to no authority suppor t ing the notion
that in cases like this one, in which both p arents ’ parental rights have been termin ated,

a non

- Indian child ’ s cultu ral b ackground should be given c onclu siv e weight in the trial

court ’ s conserva to rs hip decision such that th e trial court must award a non

- parent family member conservatorship of the ch ild without regard to its analysis of the other
factors relevant to a best

- i n terest determination. Here , eve n c onsidering the
children ’ s Romani backg roun d , the trial court c ould reasonably have concluded , based
on the factors dis cussed above , that naming Grandfather and Grandmother as the
children ’ s managing conservator was not in t he children ’ s best intere st
.

f

. Summar

y Havi ng c onsid ered the record in light of the applic able H olley factors, we
conclude that the trial court had enough information upon w hich to exercise its
discreti on and that it did not err in exercising that discret ion by f i nding that
ap pointin g the Depart men t, r ather tha n Grandfath er a nd Grandmother, as the
ch ildren ’ s managing conser vator was in the children ’ s best interest. According ly , the trial court did not abuse its discretion by naming the Department a s the children ’ s managing con servato r. See W.M. , 1 7 2 S.W.3d at 725

. We ov erru le Grandfather ’ s and
Gran dmother ’ s sol e issue s .29 I V. C ONCLUSION Having agreed w

ith Father ’ s counsel th at Father ’ s appeal is fr ivolous , and having overr uled Grandfather ’ s and Grandmot her ’ s sole issue s , we af firm th e trial

cou rt ’ s order of terminati on. See Tex. R. App. P. 43.2( a)

.
/s/ Dana Womack
Dana Womack J ustice
Delivered: February 3 , 2020