TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00658-CV
D. N. and E. M., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT NO. 19110, HONORABLE CHERYL MABRAY, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants D.N. (Father) and E.M. (Mother) appeal from the trial court’s order
terminating their parental rights to their minor children, A.N., A.P.A., and D.N.H.1 In their sole
issue on appeal, Father and Mother contend that the evidence is legally and factually insufficient to
support the termination of their parental rights. We will affirm the trial court’s order terminating
their parental rights.
1 To protect the privacy of the parties, we refer to the children and their parents by their initials. See Tex. Fam. Code § 109.002(d). BACKGROUND2
Mother is originally from Rwanda. While living in a refugee camp in Tanzania, she
met Father, with whom she eventually moved to the United States. The Texas Department of Family
and Protective Services (the Department) received its first referral concerning Father and Mother
in February 2013, when A.N. told a teacher at school that Father had hit him in the face with a
chair. At the time, the household consisted of Father, Mother, their children, and Mother’s sister
and her two children. The Department found “reason to believe” this allegation. In January 2014,
the Department received another referral alleging that one of Mother’s sister’s children had a
bruise and a swollen eye and that Mother had slapped A.P.A. During the investigation, the children
reported various incidents of physical abuse by Father. Father denied the alleged abuse, stating that
“his children lie because they’re American” and that he believed someone had bribed them. The
Department removed the children from the home because of the abuse allegations and filed the
original petition in this case.
Father, Mother, and the Department entered into a mediated settlement agreement,
and in December 2014, the trial court signed a temporary order incorporating the terms of the
agreement. Under this agreement, Father and Mother agreed to continue their individual and family
2 The facts recited in this opinion are taken from testimony and exhibits presented at trial. Although we have considered the entire record, because this is a memorandum opinion affirming the trial court’s termination order, we do not exhaustively detail the evidence. See Tex. R. App. P. 47.4 (“If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it.”); In re A.B., 437 S.W.3d 498, 507 (Tex. 2014) (holding courts of appeals need not detail the evidence when affirming termination findings).
2 counseling and not to engage in criminal activities, and Father agreed to pay monthly child support.
The order also allowed Father and Mother weekend visitation periods.
The unsupervised visitation periods ceased after Father was indicted for the
aggravated sexual assault of A.P.A. Father was later arrested and indicted for sexually assaulting
Mother’s sister. Father denied committing the assaults and claimed that A.P.A. was telling lies.
The Department sought to terminate Father’s and Mother’s parental rights, and the
case was tried to the bench. The trial court found that Father had engaged in conduct satisfying
the statutory grounds for termination listed in subsections (E) and (O) of Texas Family Code
section 161.001(1) and that Mother had engaged in conduct satisfying the ground for termination
listed in subsection (D). See Tex. Fam. Code § 161.001(1).3 The court also found that it was in the
children’s best interest for Father’s and Mother’s parental rights to be terminated and that the
Department should be named managing conservator of each child. See id. § 161.001(2). The trial
court signed an order terminating Father’s and Mother’s parental rights, and this appeal followed.
DISCUSSION
To terminate the parent-child relationship, a court must find by clear and convincing
evidence that: (1) the parent has committed one of the enumerated statutory grounds for termination
and (2) it is in the child’s best interest to terminate the parent’s rights. Id. § 161.001. Father and
Mother contend that the evidence is legally and factually insufficient to support the termination of
3 After this case was filed in the trial court, the Legislature amended section 161.001 by adding subsection (a). See Act of Apr. 7, 2011, 82d Leg., R.S., ch. 1, § 4.02, 2011 Tex. Gen. Laws 1, 9–11 (amended 2015) (current version at Tex. Fam. Code § 161.001(b)(1)). Section 161.001(1) was therefore renumbered as section 161.001(b)(1). This amendment does not affect our analysis, and we use the previous numbering throughout our opinion.
3 their parental rights. “The distinction between legal and factual sufficiency when the burden of proof
is clear and convincing evidence may be a fine one in some cases, but there is a distinction in
how the evidence is reviewed.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing
the legal sufficiency of the evidence in a parental-termination case, we consider all the evidence in
the light most favorable to the finding and determine whether a reasonable fact-finder could have
formed a firm belief or conviction that its finding was true. See id. When reviewing the factual
sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether a
reasonable fact-finder could form a firm belief or conviction that a given finding was true. In re C.H.,
89 S.W.3d 17, 18–19 (Tex. 2002). We assume that the fact-finder resolved disputed facts in favor
of its finding if a reasonable person could do so, and we disregard evidence that a reasonable
fact-finder could have disbelieved or found incredible. J.F.C., 96 S.W.3d at 266. Evidence is factually
insufficient only if a reasonable fact-finder could not have resolved the disputed evidence in favor
of its finding and if that disputed evidence is so significant that the fact-finder could not reasonably
have formed a firm belief or conviction that its finding was true. Id.
Father: statutory grounds for termination
The trial court found by clear and convincing evidence that Father engaged in conduct
satisfying the statutory grounds for termination listed in Texas Family Code section 161.001(1),
subsections (E) and (O). We will focus our analysis on the ground stated in part of subsection (E),
which provides that parental rights may be terminated if the parent “engaged in conduct . . . which
endangers the physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(1)(E); see
Spurck v. Texas Dep’t of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin
4 2013, no pet.) (“Only one statutory ground is necessary to support a judgment in a parental-rights-
termination case.”).
To constitute endangerment under subsection (E), the parent’s conduct need not be
directed at the child. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). Conduct may endanger a child
even if it does not cause the child to suffer actual injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)
(per curiam) (quoting Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
Moreover, domestic violence may constitute endangerment, even if the violence is
not directed at the child. See In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010,
pet. denied) (“Domestic violence may be considered evidence of endangerment. If a parent abuses
or neglects the other parent or other children, that conduct can be used to support a finding of
endangerment even against a child who was not yet born at the time of the conduct.”) (citation
omitted); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“A
parent’s abusive or violent conduct can produce a home environment that endangers a child’s
well-being. Domestic violence, want of self control, and propensity for violence may be considered
as evidence of endangerment.”) (citation omitted); see also N.A.B. v. Texas Dep’t of Family &
Protective Servs., No. 03-14-00377-CV, 2014 WL 6845179, at *2 (Tex. App.—Austin Nov. 26,
2014, no pet.) (mem. op.) (discussing violence and endangerment). In addition, “[s]exual abuse is
conduct that endangers a child’s physical or emotional well-being.” In re E.A.G., 373 S.W.3d 129,
143 (Tex. App.—San Antonio 2012, pet. denied).
A parent’s criminal activity or incarceration can also constitute endangerment under
subsection (E), especially if the parent engages in criminal activity while knowing that his or her
parental rights are in jeopardy. See Boyd, 727 S.W.2d at 534 (“We hold that if the evidence,
5 including the imprisonment, shows a course of conduct which has the effect of endangering the
physical or emotional well-being of the child, a finding under [predecessor to subsection (E) ] is
supportable.”); In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(“[Mother] knew her parental rights were in jeopardy, yet she continued to engage in criminal
activity that resulted in being jailed.”); In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) (“When parents are incarcerated, they are absent from the child’s daily
life and are unable to provide support, and when parents like appellant repeatedly commit criminal
acts that subject them to the possibility of incarceration, that can negatively impact a child’s living
environment and emotional well-being.”); In re AWT, 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001,
no pet.) (per curiam) (“Authority holds that intentional criminal activity which exposed the parent
to incarceration is relevant evidence tending to establish a course of conduct endangering the
emotional and physical well being of the child.”).
At trial, the Department presented evidence that Father:
• hit A.N. in the face with a chair;
• hit multiple children with a stick;
• hit A.P.A. with a phone charger;
• hit one of Mother’s sister’s children with a belt on the child’s hand and cheek; and
• had been indicted for sexually assaulting A.P.A. and Mother’s sister.
Although the trial court heard evidence that Father denied these allegations, the trial
court, as the finder-of-fact, was free to disbelieve Father and to believe the Department’s witnesses.
6 See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (“[T]he court of appeals must nevertheless still
provide due deference to the decisions of the factfinder, who, having full opportunity to observe
witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of
witnesses.”). In light of the entire record, we determine that the trial court could have reasonably
formed a firm belief that Father “engaged in conduct . . . which endangers the physical or emotional
well-being of the child.” Tex. Fam. Code § 161.001(1)(E). We further determine that a reasonable
fact-finder could have resolved disputed evidence in favor of its finding and that disputed evidence
is not so significant that the trial court could not reasonably have formed a firm belief or conviction
that its finding was true. Therefore, we conclude that the evidence is legally and factually sufficient
to support the termination of Father’s parental rights under subsection (E).
Father: best interest of the children
In a parental-rights-termination case, the best interest of the child is assessed using
a non-exhaustive list of factors. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). These
factors include (1) the child’s wishes, (2) the child’s emotional and physical needs now and in the
future, (3) emotional or physical danger to the child now and in the future, (4) the parenting abilities
of the parties seeking custody, (5) programs available to help those parties, (6) plans for the child
by the parties seeking custody, (7) the stability of the proposed placement, (8) the acts or omissions
of the parent which indicate that the existing parent-child relationship is not proper, and (9) any
excuses for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). The Department need not prove all nine Holley factors as a “condition precedent”
to termination, and the absence of some factors does not bar the fact-finder from finding that
7 termination is in the child’s best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling,
the presence of a single factor may be adequate in a particular situation to support a finding that
termination is in the child’s best interest. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001,
no pet.), disapproved of on other grounds by J.F.C., 96 S.W.3d at 267 n.39.
We conclude that the Holley factors weigh heavily in favor of a determination that
it is in the children’s best interest for Father’s rights to be terminated. As discussed above, the
trial court heard evidence that Father physically abused the children and sexually assaulted A.P.A.
and Mother’s sister. In addition, the Department presented evidence that the children were unhappy
with the idea of returning to live with their parents and that they were happy about staying in their
current placement.
We have not attempted to reproduce all of the evidence from the record supporting
the trial court’s best-interest finding. See supra n.2. We conclude, in light of the evidence summarized
above, that a reasonable fact-finder could have formed a firm belief or conviction that this finding
was true, that a reasonable fact-finder could have resolved disputed evidence in favor of its finding,
and that disputed evidence is not so significant that the trial court could not reasonably have formed
a firm belief or conviction that its finding was true. Therefore, we conclude that the evidence is
legally and factually sufficient to support the trial court’s finding that the termination of Father’s
parental rights is in the children’s best interest. Accordingly, we overrule Father’s sole issue.
Mother: statutory ground for termination
The trial court found by clear and convincing evidence that Mother engaged in conduct
satisfying the statutory ground for termination listed in Texas Family Code section 161.001(1),
8 subsection (D), which provides that parental rights may be terminated if the parent “knowingly
placed or knowingly allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(1)(D).
At trial, the Department presented evidence that Mother allowed the children to
continue to live with Father even after the allegations of physical abuse made in 2013 and 2014,
including an allegation that Father had abused A.N. that the Department found “reason to believe”
was true. Mother testified that the children lied about the abuse. In addition, the Department
presented evidence that Mother believed that A.P.A. was lying about the alleged sexual assault by
Father when Mother was first questioned about it and that, more recently, Mother stated both that
she believed A.P.A. and that she believed Father. At trial, when Mother was asked, “Do you think
that [Father] ever physically abused any of your children?” she answered, “He has never done
anything bad to any of them.”
Furthermore, although Mother testified at trial that her relationship with Father was
finished and that she would not allow Father to continue to live with the children unless he was
cleared of his criminal sexual-assault charges, the Department presented evidence that Mother was
recently seen riding in a car with Father and that Father had been to the home while Mother and the
children were there.
From this evidence of Mother’s persistent denial of Father’s abuse and her ongoing
relationship with Father, we determine that the trial court could have reasonably formed a firm
belief that Mother allowed the children to remain in a situation that endangered their well-being and
would continue to do so. In addition, we determine that a reasonable fact-finder could have resolved
9 disputed evidence in favor of its finding and that disputed evidence is not so significant that the
trial court could not reasonably have formed a firm belief or conviction that its finding was true.
Therefore, in light of the entire record, we conclude that the evidence is legally and factually
sufficient to support the termination of Mother’s parental rights under subsection (D).
Mother: best interest of the children
In addition to the evidence that Mother allowed the children to remain around Father
even after learning of the allegations of abuse, the Department presented evidence at trial that Mother
hit A.P.A. with a stick on her face and made her bleed. The Department also presented evidence that
Mother would hardly speak to the children during her visitations, that Mother appeared angry at the
children and that she would rarely make eye contact with or pay attention to any of the children
except D.N.H., that Mother appeared to blame A.P.A. for the sexual-abuse allegations that A.P.A.
made against Father, and that A.P.A. acted “very afraid” of Mother. Morever, the Department
presented evidence that Mother missed “a month to a month and a half” of therapy sessions and
that Mother did not seem open to making progress when she returned to therapy because she
believed that the Department was falsely accusing Father of sexual abuse. Finally, the Department
also presented evidence that the children were unhappy with the idea of returning to live with their
parents and that they were happy about staying in their current placement.
In light of the entire record, we conclude that the evidence of Mother’s denial of
Father’s abuse and of Mother’s own abuse and poor parenting abilities is sufficient to have allowed
the trial court to reasonably form a firm belief that it is in the children’s best interest to terminate
Mother’s parental rights. We further conclude that a reasonable fact-finder could have resolved
10 disputed evidence in favor of its finding and that disputed evidence is not so significant that the trial
court could not reasonably have formed a firm belief or conviction that its finding was true. Because
we conclude that the evidence is legally and factually sufficient to support the trial court’s findings,
we overrule Mother’s sole issue.
CONCLUSION
We recognize that the evidence presented at trial showed that Father and Mother have
faced enormous obstacles in their lives, including witnessing civil war and spending years in a
refugee camp. We are also sensitive to the difficulties Father and Mother faced when moving to a
new country with a language and culture foreign to them. Nevertheless, we cannot allow their past
to dictate their children’s futures. Having overruled Father’s and Mother’s sole issue, we affirm
the trial court’s order terminating their parental rights.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: April 8, 2016