In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00031-CV ________________
IN THE INTEREST OF B.P. and T.P. ________________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 20-04-05031-CV ________________________________________________________________________
MEMORANDUM OPINION
V.P. (“Mother”) and J.P. (“Father”) appeal the trial court’s order terminating
their parental rights to their minor children, B.P. and T.P., based on Texas Family
Code subsections 161.001(b)(1)(D), (E), and (O) and a finding that termination was
in the children’s best interest.1 See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E),
(O), (2). In five issues, Mother challenges the legal and factual sufficiency of the
evidence supporting the predicate grounds for termination and that termination of
1In parental rights termination cases, to protect the identity of the minors, we refer to the children by a pseudonym or initials and family members by their relationships to the children. See Tex. R. App. P. 9.8(b)(2). 1 her parental rights was in the children’s best interest. In one issue, Father challenges
the legal and factual sufficiency of the evidence supporting the trial court’s best
interest finding. We will affirm the trial court’s judgment.
Procedural Background: Allegations Leading to Removal
In April 2020, the Department of Family and Protective Services
(“Department”) filed its Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship naming C.P., one of B.P. and T.P.’s older siblings, as the subject of the
suit. The Petition was supported by an affidavit of a Child Protective Services (CPS)
worker. The Department averred that an altercation occurred between C.P. and
Mother where C.P. threatened Mother with a pickax, and police arrested C.P. for
making a terroristic threat.
Then, in October 2020, the Department filed its Original Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship naming B.P., T.P. and J.L., another older sibling, as the
subjects of the suit. The Department also supported this petition with the
caseworker’s affidavit. The intake allegations in the affidavit included that J.L.
sexually abused T.P., and Mother reported she could not stop the abuse but has tried
to separate them. The affidavit indicated the caseworker spoke with J.L., who denied
sexually abusing T.P. on this occasion, but admitted doing so in the past and told the
2 caseworker she was “experimenting” because an older sibling had done it to her. The
affidavit further stated that a few days later, CPS received a police report that T.P.
ran away when confronted about sexually abusing B.P.; Mother told the caseworker
that T.P. had been sexually abusing B.P. for the past month and detailed the abuse.
According to the affidavit, when asked why she waited a month to report the abuse,
Mother claimed she made a CPS report, but this was not verified in the CPS system.
The affidavit noted that CPS received another police report stating that J.L. had
sexually abused T.P. The affidavit outlined an extensive CPS history for both parents
over more than a decade, noting parents’ drug history and that Mother and B.P. tested
positive at B.P.’s birth for cocaine and marijuana.
In October 2020, the trial court appointed the Department as temporary
managing conservator of J.L., B.P., and T.P. and consolidated the cases involving
the four siblings. 2
Trial Evidence
C.P.’s Testimony
C.P. testified that she was fourteen and wanted to return to her parents’ home.
She confirmed she went home in January, but she returned to the Department’s care.
2Thetrial court ultimately severed C.P.’s case. J.L. aged out of the system without the Department proceeding to trial, and the trial court noted on the record her case was dismissed. See Tex. Fam. Code Ann. § 263.401(a), (c) (noting automatic dismissal of suit without an order if trial on the merits is not commenced within requisite time). 3 C.P. explained that she has matured, communicates better with her parents, and did
not believe she would be in danger, even though J.L. would be living there also.
C.P. testified that she lived with her parents on and off but was in CPS custody
several times. She was last in CPS custody due to her behavior and described a fight
with Mother “last year” when C.P. refused her medications and “went a little bit
crazy.” C.P. said she grabbed a pickax to try to hurt Mother.
C.P. attributed her siblings’ removal to “misunderstandings.” C.P. provided
conflicting testimony and first denied seeing her siblings sexually abused or anyone
touch anybody inappropriately, including J.L. C.P. then testified she talked to her
parents about J.L. touching her siblings, and before C.P. went into custody, they
assured her “it would be handled.” She understood much of the case was based on
sexual abuse and confirmed she and her older sister were victims of sexual abuse.
The initial charges filed against C.P. when she went into CPS custody were
resolved, but she had additional charges filed since coming into CPS custody that
were pending. She had many different placements, which she attributed to acting out
because she wanted to go home. C.P. admitted to fighting, running away, taking
pills, and doing drugs.
C.P. testified that on one occasion after running away, she was
communicating with sex traffickers but denied speaking to them recently. C.P. also
confirmed she chose to communicate with the traffickers and testified that a pimp
4 recently contacted her through social media. C.P. also testified regarding her “many”
psychiatric hospitalizations and that she was not currently taking medications.
C.P. testified that her Aunt V would be a good person to consider for her
siblings if their parents were not an option. She did not want CPS to leave without
helping her parents find services, because she felt they needed assistance. 3
Father’s Testimony
Father testified that B.P., T.P., and C.P. are his children with Mother, and
Mother had two older children, Mitch and J.L. Father testified the four older children
were removed before B.P.’s birth but ultimately returned. Father denied witnessing
or having knowledge of Mother’s cocaine use. Father admitted he began using
marijuana in 1974 while in the military but denied ever using cocaine and could not
explain his August 2021 positive drug test result for cocaine. Father remembered the
caseworker discussed services with him and testified he completed “many services.”
Father testified that he did not believe the children sexually abused each other.
He said Mother put locks on the children’s doors. Father testified the pending sexual
abuse charges against T.P. were “all false.” He said he knew that T.P. never did
3At the conclusion of C.P.’s testimony, there was a lengthy bench discussion about C.P. being sex trafficked for three days while in CPS custody but also running away from home after she was returned and being sex trafficked again for eight days while she was gone. The trial court determined that C.P. had to be returned home to her parents, because she was sex trafficked while in State custody; the judge concluded that C.P.’s return would be monitored and severed her case.
5 anything to B.P., but Mother told police T.P. did. Father did not believe B.P. would
be unsafe around T.P. or that J.L. touched T.P. Father was unconcerned with J.L.
staying in the home if T.P. returned. Father confirmed that J.L. was living with them,
but they arranged the morning of trial for her to live with his sister, Aunt V.
Father had never been to court with T.P. for the criminal charges and did not
know the terms of T.P.’s probation or whether T.P. sees a counselor. He said nobody
provided that information but admitted he had not asked about it.
Father confirmed he was arrested multiple times for family violence and as
recently as 2020 but claimed the charges were dismissed. Father acknowledged he
and Mother fought often but said that “stopped about three years ago” and denied
the kids suffered from the effects of family violence.
Father testified C.P. has had problems with disobedience but did not see her
assault Mother. He said C.P. came home from CPS for one day, then “she just took
off.” When asked about his plan to keep B.P. and T.P. safe if they returned home, he
said J.L. would live with his sister, and C.P. never had a problem with the two
younger children. When asked what he planned to do differently, Father responded,
When they removed, I was at home with them watching TV. When they come back home, I plan to continue watching TV. What I plan to do different is to make sure this don’t happen again. They was taken from me for no reason. They never touched themselves. They never touched each other.
6 He did not believe B.P. would be unsafe around T.P. Father testified he could
provide B.P. and T.P. with a safe, stable environment.
Mother’s Testimony
Mother testified CPS became involved with their family in 2007 when C.P.
tested positive for marijuana at birth. Mother testified she stopped using marijuana
then, because she wanted her children back from CPS custody. Mother also admitted
she used alcohol and cocaine but said the last time she used cocaine was 12 or 13
years ago. She did not recall whether CPS removed the children in 2011 and said
she was in the hospital for a medical and mental issue. Mother testified she only
went to two drug tests because that was all the caseworker told her she needed;
however, Mother later testified she could not recall how many times the caseworker
asked her to test and that she did not submit to all requested drug testing.
Mother has been diagnosed with depression, bipolar disorder, and insomnia,
and she takes medication. Mother testified she has gone off her meds “a few times.”
She sees a psychiatrist regularly, and they give her three months of prescriptions
every time. When asked why she had missed some court hearings, Mother said she
had COVID and “health issues” she did not wish to explain.
Mother said she did not remember when the police came to her home in June
2020 regarding allegations her children had been sexually abused, because she “was
in the hospital having surgery.” Mother denied telling police that T.P. sexually
7 abused B.P.; however, she acknowledged to police having a suspicion but never
caught them. Mother denied that B.P. ever told her that her siblings sexually abused
or molested her. According to Mother, the neighbor called police and reported they
overhead Mother say the kids were touching each other, so Mother “went along with
the call” but never said she saw anything happen. Mother denied calling 911 herself
that day. Mother said she tried to determine what was going on, and they all “had
issues[,]” so she separated them all and “was asking for help.” She denied describing
to police how T.P. assaulted B.P. and testified that B.P. slept in the bed with her.
Mother testified that police asked her to take B.P. for a SANE exam that night,
but she declined because her other children were asleep and denied telling police she
was too tired to take B.P. She said she took B.P. the next day. She denied her children
were ever sexually abused and did not believe any sexual abuse occurred in her
home.
Mother did not know what juvenile charges T.P. faced and denied he was
arrested at her home. Mother could not recall the first time B.P. was placed in foster
care, but it had been years.
Mother denied she ever used the locks on the children’s doors but said she put
them there as a precaution, because all the kids had depression. Mother explained
when they returned from care, she was “being cautious” and had to relearn their
behaviors. Mother testified that she contacted the Department to get them help.
8 Mother complained that during visits, she noticed B.P.’s hair was uncombed,
and she re-wore clothes. She also complained that while in care, T.P. had a broken
ankle, cut on his head, and a rash. Mother testified that when asked, she provided
things for B.P. and T.P. while they have been in care.
Mother agreed C.P. had many needs. Mother testified that C.P. was involved
in sex trafficking while in CPS care but denied it also occurred when C.P. returned
home. Mother agreed C.P. ran away from her home and was gone several days but
claimed she did not know she was sex trafficked.
Mother testified she was arrested for assaulting Father once, and Father had
been arrested for assaulting her. Mother said they had an argument when she was
drinking, and she “was out of control.” She did not recall if she pled guilty to an
assault by threat case in May 2021, because she was on and off her meds but agreed
she pled guilty to some offense.
Mother did not believe there were safety concerns when the children were
removed. Mother said she would protect the children and explained her plans if the
children are returned, which included getting cameras and an alarm system to
prevent C.P. from running away. Mother testified there were no issues preventing
her from caring for T.P., B.P. or C.P., or meeting their needs. When asked how she
would monitor the children while dealing with C.P., Mother testified that “is my
challenge with my children.”
9 She did not know where T.P. or B.P. went to school, did not know how T.P.
was doing in school or if he would have to repeat a grade and had not asked the
caseworker how he is doing. Mother testified the children were close and believed it
was in their best interest to come home.
Rosalind McCray’s Testimony
Rosalind McCray, the assigned CPS caseworker, also testified. McCray
confirmed the case began with only C.P. in May 2020. In October 2020, the trial
court appointed the Department temporary managing conservator of B.P., T.P., and
J.L.
McCray testified Mother told her J.L. sexually abused T.P. and C.P. At the
time, Mother did not acknowledge B.P. was also a victim of sexual abuse but later
did and told McCray that T.P. was fondling B.P. McCray testified Mother never
denied her children were victims, but Father never believed the sexual abuse
happened despite their discussions of T.P.’s criminal charges.
McCray explained that for T.P. they “meet monthly with the probation officer,
but it was not a[n] official charge. It’s supervision.” She said T.P. has matters
pending that require regular meetings with the juvenile probation department, and
he must meet with a licensed sex offender therapist weekly. As a condition of T.P.’s
juvenile terms, he cannot be unsupervised around any minors. McCray did not have
an end date for T.P.’s treatment.
10 McCray is concerned for B.P. and T.P.’s safety in the parents’ home. Since
the children repeatedly acted out sexually with each other, she is concerned about
who is supervising them and whether they will be supervised. If T.P. returns to his
parents, she feared for his stability, welfare, and that the cycle would repeat. McCray
is concerned about T.P.’s criminal cases given his difficulty opening up, and he has
shared conflicting information with different individuals. McCray testified she
worried about B.P. and T.P. returning to a home where C.P. or J.L. reside. McCray
questioned the children’s safety given their reports of abuse by a sibling during
forensic and SANE exams. McCray was also concerned the parents failed to protect
the children from that abuse.
McCray expressed further concerns about the parents’ domestic violence and
Mother’s mental health treatment. McCray said Mother reported she had been off
her medication. McCray testified that when Mother is not medicated, she texts
McCray beginning at 6 a.m. up to twenty times with profanity. According to
McCray, Father expressed concerns about Mother’s drinking and described Mother
as “crazy.”
McCray testified she spoke with the parents about the locks on the doors, but
when she visited, the locks were not there. According to McCray, the parents told
her the locks were to ensure the children stayed in their own rooms and were not
11 going into someone else’s room while the parents slept. Both parents indicated they
locked the doors with the children in the rooms.
McCray described Father’s failure to engage with the children and his drug
tests. Father told her he had not used drugs in years and did not know how he tested
positive. McCray scheduled court ordered drug testing for both parents in February
and received Father’s results but not Mother’s. McCray testified that she asked
Mother to drug test at least once monthly, but Mother never submitted to testing.
McCray testified that the parents regularly brought food, clothing, and money
for T.P.’s caregiver to visits. McCray observed Mother’s visits with T.P. that she felt
were inappropriate. She explained that Mother dressed inappropriately without
wearing a bra and they discussed how certain types of touches could stimulate young
men given T.P.’s history of sexual aggression, and after that, Mother complied
“sometime.” McCray testified that T.P.’s skin rash existed when he came into care,
and they always addressed his skin condition medically when they see a problem.
McCray testified that she had been in the parents’ home, and the home itself
was appropriate for B.P. and T.P. She is concerned about both parents being
unemployed, but they have been able to meet T.P.’s needs.
The Department has looked at other relatives and possible placements for the
children, and their goal is adoption for B.P. and T.P. For T.P., they intend to pursue
adoption with Aunt V, and McCray has been speaking with her. No relatives are
12 willing to take the children without terminating the parents’ rights. McCray testified
that T.P. had not experienced repeated harm while in the Department’s care. Aunt V
wants to adopt T.P., but they have not done a home study on Aunt V yet. She had no
concerns when she observed T.P.’s visits with Aunt V, and they appear to have a
“really close relationship[.]” McCray did not have concerns about T.P.’s future
stability or welfare if he were adopted. B.P.’s current foster home is not an adoptive
home, but a family familiar with her is interested in adoption, which the Department
planned to pursue.
Based on prior conversations with the parents, McCray doubted the
truthfulness of their testimony. McCray has no evidence the parents can provide the
children with a safe home or have the necessary parenting skills to provide them
with safety and testified that termination of parental rights was in the children’s best
interest.
Lucille Saah’s Testimony
While working with the Montgomery County Sheriff’s Department in June of
2020, Lucille Saah responded to a request for assistance. It originally came through
as a child discipline call but changed to a sexual assault call. The call came through
911, and Mother made multiple 911 calls that night. When Saah arrived, her partner
was outside talking to T.P., so she went inside to talk to Mother. Mother told her that
T.P. was sexually assaulting her youngest daughter, B.P. Saah said Mother “was
13 adamant” the sexual abuse occurred. Mother said that B.P. slept in the bed with her,
and T.P. had a bed on the floor in the same room. Mother told her she knew of the
abuse, because B.P. was walking strange and kept going to the bathroom on herself.
Mother told Saah about sexually explicit photos and search history on T.P.’s phone,
which Mother felt caused him to assault B.P.
Saah testified that Mother reported the assaults occurred in the bedroom and
described how they occurred. At the end of their investigation, they filed charges
against T.P. for sexually assaulting B.P. Mother told Saah she had already contacted
CPS about the situation, but when Saah contacted the caseworker to confirm this,
they had no recollection.
When she asked Mother why she waited a month to report the sexual assault,
Mother responded she did not believe it at first, then she tried to contact family
members and CPS before she called the police. Saah advised Mother to take B.P. for
a SANE exam that night, but Mother said she was too tired to take her. Mother told
her she was familiar with SANE exams because her other children had them before.
When Saah asked about collecting evidence like B.P.’s clothes and bedsheet, Mother
changed her story about how the assaults occurred.
Mother told Saah that she was bipolar and schizophrenic and had not taken
her medications in a while. Mother also mentioned Father hit her in the past but did
not provide details.
14 Jim Funke’s Testimony
Jim Funke, B.P.’s CASA advocate, also testified. He was assigned to the case
in November or December 2020 and met with B.P. monthly. Funke also visited with
the parents over the past year and expressed concern that Father appeared disengaged
with B.P. and did not interact with her during visits. Funke testified Father never
asked about B.P.’s education or how he could help her. Funke worried about ongoing
drug use and sexual abuse against B.P. Funke believed that B.P. has seen a therapist,
but he has not spoken with the therapist.
Funke expressed concern that J.L. lives with her parents, there was a risk of
J.L. sexually abusing B.P., and the parents would not intervene. Funke testified that
during one visit, J.L. called Father, and Father asked if B.P. wanted to talk to her,
which concerned him for B.P.’s safety. Funke questioned Mother’s ability to care
for B.P., because he has not observed any changes in the conditions that existed prior
to them coming into care. Mother’s and Father’s continued denials of what transpires
in their home troubled him, and he believed it put B.P. and other children in their
home at risk. He did not see the parents acknowledge their role in how the children
came into CPS care. Their repeated denials concerned him, and he believed that it
would put B.P. and other children in the home at risk.
Funke noticed personality changes in Mother when she called and described
her “rants” about being a victim. Funke observed several visits between Mother and
15 B.P., which were appropriate. He said she asked in “general ways” what she could
do to get her kids back, and Funke told her to contact CPS, since they administered
those things. He believed CPS went above and beyond to reunite the family.
B.P. is placed with a foster family and doing great, but the foster family is not
interested in adoption. Funke was not aware that B.P. had any special needs and
described her as “a happy 6-year-old in a very good environment.” He said she was
comfortable, and her needs are being met in her current placement.
Funke testified another family that provided respite care for B.P. would be a
good adoptive candidate, but he had not discussed the adoption option with them or
made inquiries regarding their interest in adopting B.P. Funke met the family
providing respite care and observed B.P. respond to them affectionately. Funke
agreed with CPS’s recommendation to terminate both parents’ rights and believed
termination was in B.P.’s best interest.
Ron Finch’s Testimony
Ron Finch, T.P.’s CASA advocate, also testified. He was assigned the case in
November 2020 and met with T.P. monthly for about a year. Finch also attended
some monthly meetings with T.P.’s probation officer. In addition to the sexual abuse
provider therapist, T.P. also receives treatment from a skills therapist.
Finch explained Mother used the natural bond between “mother and child to
manipulate [T.P.]” Specifically, “she solicits statements of devotion from him
16 excessively and also she solicits sympathy for herself and it doesn’t seem like a
parent-child relationship but like a child-child relationship.”
Finch said he did not have many conversations with the parents, usually
during visits, and he visited their home but did not speak to them about services.
Finch was not concerned about the home but feared T.P. was “emotionally
vulnerable at his age” and given the strong bond with his parents, “he is vulnerable
to being manipulated because of that bond.”
Finch confirmed T.P. has educational issues, and he has spoken with T.P.’s
therapist but has not shared the information from the therapist with the parents. The
parents did not ask Finch about T.P.’s criminal case or education.
Finch has contacted Aunt V and said she seems like a loving aunt who is
concerned about all the children, particularly T.P.; she seems committed to him and
the adoption process. Finch believed that it would be appropriate for T.P. to live with
Aunt V permanently and felt she could care for T.P.
Finch believed if T.P. returned to his parents, it would significantly impact his
physical health or emotional welfare. Finch believed it was in T.P.’s best interest to
terminate the parental rights of both parents.
Other Evidence
Additional evidence admitted at trial included photographs of the children,
photographs of the inside of the parents’ home, a copy of a family violence protective
17 order as to Father, a criminal complaint regarding Father violating that protective
order, status hearing order requiring compliance with the service plan, a redacted
copy of the service plan, and the parents’ drug test results showing Father’s positive
results for cocaine and marijuana while the case was pending.
Termination
The trial court found by clear and convincing evidence the Department proved
predicate termination grounds D, E, and O against Mother and Father as to B.P. and
T.P. and that termination was in both children’s best interest. The trial court
appointed the Department as permanent managing conservator.
Standard of Review
The standard of proof required in cases involving termination of parental
rights is clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b); In
re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (citing In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002)) (other citations omitted). Clear and convincing evidence is “the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established. Tex.
Fam. Code Ann. § 101.007.
When conducting a legal sufficiency review of the termination of parental
rights,
18 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 the 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.
In re J.F.C., 96 S.W.3d at 266; see also In re E.N.C., 384 S.W.3d at 802.
In a factual sufficiency review, we “give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing” and must
determine “‘whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the State’s allegations.’” In re J.F.C., 96
S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Considering the
entire record, if the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually
insufficient. Id. We defer to the factfinder’s findings and do not substitute our
judgment for the factfinder’s. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The
factfinder is the sole arbiter of the witnesses’ credibility and demeanor. See id. at
109 (quoting In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
19 Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there is also a finding that termination is in
the child’s best interests. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (applying
previous version of the statute). Since Mother challenges the endangerment findings
and given the potential future consequences of a D or E finding for a parent to a
different child, due process concerns and the requirement for a meaningful appeal
mandate an analysis of these grounds. See In re N.G., 577 S.W.3d 230, 236–37 (Tex.
2019) (per curiam); In re C.M.C., 554 S.W.3d 164, 171 (Tex. App.—Beaumont
2018, no pet.); see also Tex. Fam. Code Ann. § 161.001(b)(1)(M) (providing a
sufficient basis to terminate parental rights based on a previous section
161.001(b)(1)(D) or (E) finding).
Analysis
Mother’s Challenge of Endangerment Findings: Statutory Grounds D and E
In her first two issues Mother challenges the sufficiency of the evidence
supporting the trial court’s endangerment findings, so we first consider whether the
evidence is sufficient to support the findings terminating Mother’s rights under
subsections 161.001(b)(1)(D) and (E). See In re N.G., 577 S.W.3d at 235–36. If the
evidence is sufficient as to one of these grounds plus sufficient evidence exists to
support the best interest finding, we will affirm the termination order. See id. at 232–
33. Because Since evidence of grounds D and E is often interrelated, we consolidate
20 our review of these grounds. See In re J.L.V., No. 09-19-00316-CV, 2020 WL
1161098, at *10 (Tex. App.—Beaumont Mar. 11, 2020, pet. denied) (mem. op.).
Subsection D allows for the termination of parental rights if clear and
convincing evidence supports that 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 Ann. §
161.001(b)(1)(D). Under subsection E, parental rights may be terminated if clear and
convincing evidence establishes 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 the child[.]” Id. § 161.001(b)(1)(E). The Texas Supreme
Court has explained that “‘endanger’ means to expose to loss or injury; to
jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987) (citation omitted). To endanger a child, “it is not necessary that the conduct
be directed at the child or that the child actually suffers injury.” Id.
“Subsection D requires the endangerment to the child to be a direct result of
the child’s environment.” See Interest of J.H., No. 09-20-00056-CV, 2020 WL
4516860, at *10 (Tex. App.—Beaumont Aug. 6, 2020, no pet.) (mem. op.) (citation
omitted). “Endangerment under subsection (D) arises from a child’s environment
and a parent’s disregard for the potential for danger created by the
environment.” Interest of I.V.H., No. 01-19-00281-CV, 2019 WL 4677363, at *5
21 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, pet. denied) (mem. op.) (citation
omitted). We consider the child’s environment before the Department obtained
custody in our subsection D endangerment analysis. See Interest of J.L.V., 2020 WL
1161098, at *10. Under subsection D, termination may be based on a parent’s single
act or omission. In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet.
denied). It is unnecessary that a parent know with certainty the child is in an
endangering environment; instead, awareness of the potential for danger and
disregarding the risk is enough to show endangering conduct. See In re J.H., 2020
WL 4516860, at *10.
To terminate a parent’s rights under subsection E, the evidence must “show a
conscious course of conduct.” In re C.M.C., 554 S.W.3d at 172 (citing In re J.T.G.,
121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)). In our analysis of
subsection E, we may consider actions occurring before and after a child’s birth to
establish a “course of conduct.” See id. (citation omitted).
Evidence of a parent’s drug use can support the conclusion that the child’s
surroundings endanger her physical or emotional well-being under subsection D and
qualify as a “voluntary, deliberate, and conscious course of conduct endangering the
child’s well-being under subsection (E).” In re C.V.L., 591 S.W.3d 734, 751 (Tex.
App.—Dallas 2019, pet. denied) (citation omitted). A parent’s continued drug use
after the child’s removal is conduct that risks parental rights and may support an
22 endangering course of conduct under E. See Cervantes-Peterson v. Tex. Dep’t of
Family & Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (noting that mother’s continued narcotics use after child’s removal in
the face of drug testing, jeopardized her relationship with her child). The family had
a lengthy CPS history going back many years, and the children had been removed
repeatedly, beginning when C.P. tested positive for marijuana at birth. Mother
refused to submit to drug testing during this case’s pendency, despite the service
plan’s requirement for random drug testing and the caseworker’s monthly requests.
The trial court may infer from these refusals that Mother was using drugs. See In re
K.C.B., 280 S.W.3d 888, 895 (Tex. App.—Amarillo 2009, pet. denied) (noting trial
court may infer from parent’s refusal to submit to drug test that they are using drugs).
“Domestic violence and a propensity for violence may be considered evidence
of endangerment, even if the endangering acts did not occur in the child’s presence,
were not directed at the child, or did not cause actual injury to the child.” In re K.A.R.,
No. 04–17–00723–CV, 2018 WL 1733147, at *3 (Tex. App.—San Antonio Apr. 11,
2018, pet. denied) (mem. op.); see Boyd, 727 S.W.2d at 533. Abusive or violent
conduct by a parent or other resident of a child’s home can produce an environment
endangering the child’s physical or emotional well-being. In re K.A.S., 131 S.W.3d
215, 222 (Tex. App.—Fort Worth 2004, pet. denied). Both parents admitted during
trial to a history of domestic violence, and both had been arrested for it.
23 Documentary evidence showed that Father violated a domestic violence protective
order. The trial court also heard evidence of C.P.’s violent outburst in the home. The
trial court could have reasonably concluded the history of domestic violence in the
home endangered the children. See id.
Mental illness alone is not a ground for terminating the parent-child
relationship, but untreated mental illness can expose a child to endangerment and is
a factor the court may consider. In re S.R., 452 S.W.3d 351, 363 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). Despite multiple mental illness diagnoses
and regularly seeing a psychiatrist, Mother failed to consistently take her medication.
The caseworker observed significant changes in Mother’s behavior when she did not
take her medications like sending multiple profane text messages to the caseworker.
Under these facts, the trial court could have concluded Mother’s failure to comply
with mental health treatment exposed her children to endangerment. See id.
“Sexual 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) (citations omitted). Sexual assault of a child in the home is conduct the court
can infer will endanger the physical and emotional well-being of other children in
the home who may either discover the abuse or be abused themselves. Id. Evidence
established that J.L. and T.P. sexually abused their siblings. See In re R.W., 129
S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied) (noting evidence of one
24 child’s sexual abuse is sufficient to support an endangerment finding as to other
children). Despite Mother denying this at trial, multiple witnesses testified that
Mother admitted this abuse occurred in her home, and she waited a month to report
the abuse to authorities. The evidence showed neither parent was protective of the
children when it came to the sexual abuse. Both CASA advocates and the caseworker
testified they had concerns about B.P. and T.P. returning to their parents’ home and
feared the cycle of abuse would continue. C.P. confirmed both she and a sibling had
been sexually abused. She also testified regarding J.L. touching her siblings and that
her parents assured her it would be “handled.”
The evidence of the parents’ drug use, domestic violence, and sexual abuse
was sufficient for the trial court to conclude that Mother had exposed B.P. and T.P.
to risk of loss or injury. See Boyd, 727 S.W.2d at 533. Viewing the evidence in the
light most favorable to the trial court’s findings, we conclude that the factfinder
could reasonably have formed a firm belief or conviction that Mother (1) knowingly
placed or knowingly allowed the children to remain in conditions or surroundings
which endangered their physical or emotional well-being and (2) engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being. See Tex. Fam. Code
Ann. § 161.001(b)(1)(D), (E); see also In re J.F.C., 96 S.W.3d at 266; In re J.T.G.,
121 S.W.3d at 125. Further, considering the entire record, we conclude the disputed
25 evidence is not so significant as to prevent the trial court from forming a firm belief
or conviction that termination of Mother’s parental rights was warranted under
subsection D and E. See In re J.F.C., 96 S.W.3d at 266.
We overrule Mother’s first and second issues and decline to address her third
and fourth issues. See In re J.S., No. 09-20-00294-CV, 2021 WL 2371244, at *9–10
(Tex. App.—Beaumont June 10, 2021, no pet.) (mem. op.) (noting if there are
multiple predicate grounds, we will affirm based on any one ground as only one is
necessary to terminate parental rights); see also Tex. R. App. P. 47.1 (requiring
appellate courts to issue a written opinion as brief as practicable that addresses all
issues necessary to the appeal’s disposition).
Best Interest
Both parents challenge the legal and factual sufficiency of the evidence
supporting the trial court’s best interest finding. Trial courts have wide latitude in
determining the children’s best interest. See Gillespie v. Gillespie, 644 S.W.2d 449,
451 (Tex. 1982). There is a strong presumption that the children’s best interest is
served by keeping them with their parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (citing Tex. Fam. Code Ann. § 153.151); In re D.R.A., 374 S.W.3d 528, 533
(Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. §
153.131(b). Prompt and permanent placement of the child in a safe environment is
also presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a).
26 The parents contend the Department’s evidence fails to address all the Holley
factors. The Family Code outlines factors to be considered in determining whether
a parent is willing and able to provide a safe environment for the children. See id. §
263.307(b). Several other nonexclusive factors may be considered a best interest
analysis, including: (1) the desires of the children; (2) the emotional and physical
needs of the children now and in the future; (3) the emotional and physical danger
to the children now and in the future; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist these individuals to promote
the best interest of the children; (6) the plans for the children by these individuals or
by the agency seeking custody; (7) the stability of the home or proposed placement;
(8) the parent’s acts or omissions that may indicate that the existing parent-child
relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re A.C., 560
S.W.3d 624, 631 (Tex. 2018) (characterizing the Holley factors as “nonexclusive”).
No particular Holley factor is controlling, and evidence of one factor may be enough
to support a finding that termination is in the children’s best interest. See M.C. v.
Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso
2009, pet. denied) (“Undisputed evidence of just one factor may be sufficient to
support a finding that termination is in the best interest of a child.”) (citations
omitted); see also In re C.H., 89 S.W.3d at 27.
27 We may consider circumstantial evidence, subjective factors, and the totality
of the evidence in our best interest analysis. See In re N.R.T., 338 S.W.3d 667, 677
(Tex. App.—Amarillo 2011, no pet.). A parent’s past conduct is relevant to
determining the parent’s present and future ability to care for a child. See In re C.H.,
89 S.W.3d at 28. Evidence supporting the statutory grounds for termination may also
be used to support a finding that the best interest of the child warrants termination
of the parent-child relationship. See id.
We have previously explained the trial evidence shows Father’s history of
drug use, domestic violence, and continued denials of the sexual abuse occurring
between the children. Additionally, Father saw nothing wrong with the children
returning to live in the same home with the siblings that sexually abused them.
Father did not know the terms of T.P.’s probation, which prohibited him from being
unsupervised with other minors. When asked what his plans were for dealing with
B.P. and T.P. if they returned to his home, Father said the children were removed
for no reason.
Likewise, the evidence showed Mother’s inappropriate relationship with T.P.,
her refusal to submit to drug testing, her refusal to consistently take medication to
control her mental illness, her domestic violence against Father, and that she waited
28 a month to report T.P. was sexually abusing B.P. The evidence also showed that C.P.
was arrested and placed in CPS custody for threatening Mother with a pickax.4
While evidence of placement plans and adoption are relevant to best interest,
the lack of evidence about definitive plans for permanent placement and adoption
cannot be the dispositive factor. In re C.H., 89 S.W.3d at 28. Otherwise, best interest
determinations would regularly be subject to reversal on the sole basis that an
adoptive family cannot yet be located. Id. Instead, we ask whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that
termination of the parent’s rights is in the child’s best interest—even if the agency
is unable to identify with precision the child’s future home environment. See id.
Although permanent placements were not final for the children, the caseworker and
CASA volunteers described potential adoptive options for B.P. and T.P. The
testimony established that the children’s needs were being met in their current
placements, including ongoing therapy. The CASA volunteers and caseworker
testified it was in B.P. and T.P.’s best interest for both parents’ rights to be
4To the extent the parents argue that C.P.’s return to their home is proof that termination is not in the best interest of B.P. and T.P., we disagree. The evidence at trial established that C.P. struggled with severe behavioral issues, which made placing her difficult while in CPS care. The evidence further established that C.P. ran away while in CPS care and from her parents, which led her to being sex trafficked on both occasions. The testimony went to C.P.’s unique circumstances. The fact that she returned to her parents’ home on a monitored basis did not mean it was in B.P. and T.P.’s best interest to do so.
29 terminated. Specifically, they were concerned about the pattern of abuse continuing
and saw nothing that made them believe circumstances had changed in Mother’s and
Father’s home.
Considering the evidence related to best interest, deferring to the trial court’s
determinations on witness credibility, the resolution of conflicts in the evidence, and
the weight given to the testimony, we conclude that the statutory and Holley factors
weigh in favor of the trial court’s finding that termination is in the children’s best
interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a), (b); Holley, 544
S.W.2d at 371–72. The trial court could have reasonably formed a firm belief or
conviction that termination of Mother’s and Father’s parental rights was in B.P.’s
and T.P.’s best interest. See In re C.H., 89 S.W.3d at 28; In re S.Q., No. 13-01-156-
CV, 2001 WL 1559232, at *4 (Tex. App.—Corpus Christi Dec. 6, 2001, no pet.)
(mem. op.) (concluding termination was in children’s best interest where evidence
showed mother failed to supervise children, older siblings sexually abused younger
sisters, and children had behavioral problems, among other things). We overrule
Mother’s fifth issue and Father’s sole issue.
30 Conclusion
Having overruled Mother’s challenge to the legal and factual sufficiency of
the evidence supporting predicate grounds D and E and both parents’ challenge to
the trial court’s best interest finding, we affirm the trial court’s termination order.
AFFIRMED.
________________________________ W. SCOTT GOLEMON Chief Justice
Submitted on May 31, 2022 Opinion Delivered June 23, 2022
Before Golemon, C.J., Horton, and Johnson, JJ.