in the Interest of J.R., L.R., B.R., H.R., Children

Opinion

NO. 07-12-00003-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 8, 2012

IN THE INTEREST OF J.R., L.R., B.R., H.R., CHILDREN

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 75,753-E; HONORABLE DOUGLAS WOODBURN, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellants, Johnny and Christina, appeal the trial court’s order terminating their

parental rights to four of their children, daughters J.R., L.R., B.R., and H.R., currently

ages eleven, nine, eight, and six, respectively.1 On appeal, they contend the evidence

is insufficient to support the trial court’s order. We will affirm.

1 Throughout this opinion, appellants will be referred to as “Johnny” and “Christina,” and the children will be identified by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2011); TEX. R. APP. P. 9.8(b). Factual and Procedural History

The Department’s First Petition

In October 2007, the Texas Department of Family and Protective Services (the

Department) received a report that J.R. and L.R. were being physically abused and

neglected, that they were living in a house without electricity and running water, and that

J.R. had been sent to school with alcohol in her lunch. When the Department

investigated the report, it found the children were very dirty with dark areas of caked-on

dirt on their bodies and lice and rodent droppings in their hair. The Department

received a second report days later that these issues had not been resolved. In

January 2008, the Department began Family Based Safety Services with Johnny and

Christina in an effort to assist the family. Approximately two months later, however, the

Department learned that J.R. and L.R. still had lice and rodent droppings in their hair.

The report also alleged that the two girls had ingested sleeping medication.

In April 2008, the Department removed all four girls from the home and filed its

first petition seeking termination of Johnny’s and Christina’s parental rights to the

children. On May 6, 2008, the trial court signed an agreed temporary order in which it

ordered Johnny and Christina to comply with the Department’s service plan. The

Department permitted the children to return to the home in November 2008 but removed

them again in April 2009 based on the following reports: continued lice infestations,

frequent extended absences from school, not being current on immunizations, lack of

medical and dental care, and Johnny’s and Christina’s failure to complete their service

2 plan. The Department was also concerned about allegations that the girls were being

sexually abused by an uncle.

In October 2009, the parties entered into an agreed final order (the 2009 Order)

in which the Department was named permanent managing conservator of the four girls

and Johnny and Christina were named possessory conservators with rights of visitation

and duties to support. The 2009 Order denied all other requested relief, including the

Department’s request to terminate the parent-child relationship.

The Department’s Second Petition

In February 2010, the Department implemented a new service plan for Johnny

and Christina. Department records show that, as of June 2010, the Department

continued to have concerns regarding safe, stable, non-infested housing for the

children. The Department further documented the impaired intellectual functioning of

J.R. and L.R. and the special needs of B.R. Continued investigation showed that, as of

December 2010, Johnny and Christina resided at the time in a dirty, poorly supplied

apartment and still had difficulties meeting their own needs, had only limited contact or

cooperation with the Department, had moved at least five times, and had maintained

only sporadic, infrequent visits with the girls.

Johnny’s and Christina’s disinterest in initiating or completing services continued

through October 2011, when the Department concluded that the couple had failed to

make any changes which would demonstrate their ability to care for the children or meet

the children’s physical or emotional needs. They failed to inform the Department of their

current address, had not requested visitation with the children in several weeks, and 3 denied any deficiencies in their parenting skills. In February 2011, the Department filed

its second petition seeking termination of Johnny’s and Christina’s rights to the four

girls. In it, the Department alleged that circumstances had materially and substantially

changed since the 2009 Order, that several statutory grounds for termination existed,

and that termination was in the children’s best interest.

In a trial to the bench, which neither Johnny nor Christina attended, the

Department presented evidence in support of its several allegations of grounds for

termination and its allegation that termination was in the best interest of the children.

The trial court found that clear and convincing evidence supported four statutory

grounds for termination and a finding that termination of parental rights was in the best

interest of the children. On December 7, 2011, the trial court signed its order

terminating Johnny’s and Christina’s parental rights to J.R., L.R., B.R., and H.R.

Johnny and Christina appeal, contending the evidence is legally and factually

insufficient to support (1) a finding that their acts or omissions, primarily those since the

2009 Order, satisfied any of the alleged statutory grounds for termination and (2) a

finding that termination of their parental rights was in the children’s best interest.

Applicable Law and Standards of Review

The natural right existing between parents and their children is of constitutional

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child 4 except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).

Because the instant case deals with termination of Johnny’s and Christina’s

parental rights to these children after the trial court disposed of a prior petition seeking

the same, this case invokes, and the Department alleged, the requirements of section

161.004, which provides as follows:

(a) The court may terminate the parent-child relationship after rendition of

an order that previously denied termination of the parent-child relationship

if:

(1) the petition under this section is filed after the date the order

denying termination was rendered;

(2) the circumstances of the child, parent, sole managing

conservator, possessory conservator, or other party affected by the

order denying termination have materially and substantially

changed since the date that the order was rendered;

(3) the parent committed an act listed under Section 161.001 before

the date the order denying termination was rendered; and

(4) termination is in the best interest of the child. 5 (b) At a hearing under this section, the court may consider evidence

presented at a previous hearing in a suit for termination of the parent-child

relationship of the parent with respect to the same child.

TEX. FAM. CODE ANN. § 161.004 (West 2009); see In re N.R.T., 338 S.W.3d 667, 678–79

(Tex.App.—Amarillo 2011, no pet.). So, as in any other termination case in which the

Department simply alleged section 161.001, the Department, here, is still required to

prove that a predicate statutory ground for termination exists and that termination is in

the children’s best interest. See TEX. FAM. CODE ANN. § 161.004(a)(3)–(4). Section

161.004 adds another requirement, however, in this procedural context: that the

circumstances of an involved party have materially and substantially changed since the

date the prior order denying termination was rendered. See id. § 161.004(a)(2).

Section 161.004(a)(2)’s additional requirement has been regarded as a mechanism

through which the Department may, upon proper proof of a material and substantial

change in circumstances, defeat a parent’s claim of res judicata when, as here, the

Department seeks termination after a prior petition seeking termination was denied.

See In re K.G., 350 S.W.3d 338, 349 (Tex.App.—Fort Worth 2011, pet. denied); see

also In re N.R.T., 338 S.W.3d at 680 (concluding that, when Department satisfied

section 161.004(a)’s requirements, under section 161.004(b), “trial court was free to

consider evidence predating” prior order denying termination). There are no definite

guidelines as to what constitutes a material and substantial change in circumstances

under section 161.004. In re N.R.T., 338 S.W.3d at 679. Instead, we determine

whether there has been such a change based on the facts of each case. Id.

6 With respect to section 161.004’s other requirements, we reiterate that a trial

court may order termination of parental rights if the petitioner establishes (1) one or

more acts or omissions enumerated under section 161.001 and (2) that termination of

the parent-child relationship is in the best interest of the child. TEX. FAM. CODE ANN. §

161.004(a) (3)–(4). Though evidence may be relevant to both elements, each element

must be proven, and proof of one does not relieve the burden of proving the other. See

In re C.H., 89 S.W.3d at 28. While both a statutory ground and best interest of the child

must be proven, only one statutory ground is required to terminate parental rights under

section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, we will affirm

the trial court’s order of termination if legally and factually sufficient evidence supports

any one of the grounds found in the termination order, provided the record shows that it

was also in the best interest of the child for the parent’s rights to be terminated. See id.

Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see TEX. FAM. CODE ANN. § 161.206(a) (West 2009).

“‘Clear and convincing evidence’ means 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 (West 2009).

This standard, which focuses on whether a reasonable jury could form a firm belief or

conviction, retains the deference a reviewing court must have for the factfinder’s role. In

re C.H., 89 S.W.3d at 26.

7 In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, we 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 as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. “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.” Id. In other words, we will disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination

order, we determine “whether the evidence is such that a factfinder could reasonably

form a firm belief or conviction about the truth of the [Department]’s allegations.” In re

C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire

record, 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.

8 Analysis

Material and Substantial Change

Again, the 2009 Order appointed the Department permanent managing

conservator of the four girls and named Johnny and Christina possessory conservators

with rights of visitation and duties to support. The trial court denied all other relief

sought, including termination of the couple’s parental rights to their four daughters.

Since the trial court rendered the 2009 Order, however, the circumstances of the

children, the parents, and the Department have changed. With respect to the children,

J.R.’s and L.R.’s counselor, Lee Ann Lefevre, testified that they initially held out hope

that their parents would take the steps necessary to secure the reunification of the

family. She indicated that this hope persisted for some time, especially with respect to

J.R. However, both girls now want their parents’ rights to be terminated so that they

can be adopted into permanent families. See Thompson v. Tex. Dep’t of Family &

Protective Servs., 176 S.W.3d 121, 126 (Tex.App.—Houston [1st Dist.] 2004, pet.

denied) (observing that child’s “progress in foster care is also a change in circumstance

because it has readied him for a more permanent placement”). The record indicates

that B.R. has been placed in a foster home and moved with the foster family to the

Dallas area. H.R. is in a home with the girls’ younger brother, J.R., with a family who

seeks to adopt them both. So, the children are significantly closer, both psychologically

and logistically, to places in which they seek adoptive families and stability.

With respect to Johnny and Christina, much in their life has remained the same:

unstable. However, their continued instability has manifested itself in new ways, ways 9 that have now impacted their relationships with their children and the Department such

that their own circumstances have materially and substantially changed. The

Department no longer saw reunification as feasible because Johnny and Christina had

failed to complete services since February 2010 and had maintained only sporadic,

infrequent visits with the girls. See id. at 127.

Further, the parents had refused to maintain regular contact with the Department

and, in the last conversation about two weeks prior to the hearing, had refused to

disclose to the Department their current address. Their parental rights to another child,

an infant son, J.R., have been terminated since the 2009 Order. Also, Christina has lost

her Medicaid benefits, and the Department noted that she had failed to address her own

medical problems. Between the two of them, Johnny and Christina made only three

child support payments, totaling $225.00, since the 2009 Order.

In December 2010, the Department noted concerns regarding continued

frequent, often unreported moves and the fact that Johnny and Christina had lived for

some time behind the home of a registered sex offender. The apartment the

Department visited around December 2010 was dirty and poorly supplied, as was the

one-bedroom apartment visited in June 2011. Neither had given the Department any

indication that he or she had attained stable employment. The Department noted that

Johnny and Christina continued to “demonstrate significant instability.” So, while they

had done little to change their lifestyle, their circumstances, in relation to the

Department, had changed in that they had ceased even minimal effort to visit or support

the children or cooperate with the Department.

10 Based on Johnny’s and Christina’s continued instability and recent disinclination

to cooperate at all with the Department, their daughters, too, had given up any hope of

reunification; they wished for permanence and appeared to have accepted that

permanence will only come to them by way of adoption. So, Johnny’s and Christina’s

circumstances had materially and substantially changed in that at least two of their

children had abandoned hope of reunification. Further, Johnny and Christina are no

longer a potential source of permanence and stability. Lefevre’s testimony suggested

that J.R. and L.R. regard the few remaining ties to their parents as a hindrance to the

girls’ goal of permanence.

Regarding the Department, it has found a family ready to adopt both H.R. and

her younger brother, and seeks an adoptive home for J.R., L.R., and B.R. as a sibling

group. See In re N.R.T., 338 S.W.3d at 679. The Department stands in a different

position now that Johnny and Christina have continued to refuse to contact the

Department and complete services. In light of every indication that they are not going to

take any steps to be suitable parents for the girls, as counselor Lefevre explained, it

would be “unthinkable” that the girls would be returned to Johnny’s and Christina’s care

and “very, very sad” for the girls to languish in foster care throughout childhood. With

that, the Department’s goal has shifted toward finding the girls an adoptive family to

meet their needs for permanence and stability.

On these facts, the circumstances of the children, the parents, and the

Department have materially and substantially changed such that the trial court was

permitted to consider endangering conduct and conditions present prior to rendition of

11 the 2009 Order when determining whether Johnny’s and Christina’s parental rights

should be terminated as requested in the Department’s second petition.

Predicate Act or Omission

Having concluded that the circumstances since the 2009 Order have materially

and substantially changed, we look to evidence that would support a finding that Johnny

and Christina knowingly placed or allowed the children to remain in conditions or

surroundings which endanger their physical or emotional well-being, without regard to

whether the conditions arose before or after rendition of the 2009 Order. See TEX. FAM.

CODE ANN. § 161.001(1)(D) (West Supp. 2011).

“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). Although “‘endanger’ means

more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal

family environment, it is not necessary that the conduct be directed at the child or that

the child actually suffers injury.” Id.; see In re P.E.W., 105 S.W.3d 771, 777

(Tex.App.—Amarillo 2003, no pet.) (observing that child “need not develop or succumb

to a malady” in order to prove endangering conditions). Subsection (D) focuses on the

suitability of the children’s living conditions. In re R.D., 955 S.W.2d 364, 367–68

(Tex.App.—San Antonio 1997, pet. denied). However, although the focus of subsection

(D) is on the children’s living environment and not on the parents’ conduct, parental

conduct may produce an endangering “environment.” See In re D.T., 34 S.W.3d 625,

633 (Tex.App.—Fort Worth 2000, pet. denied).

12 The record establishes that the children’s living conditions were inadequate and

dirty and in disarray. Unsanitary conditions can qualify as surroundings that endanger a

child. In re C.L.C., 119 S.W.3d 382, 392 (Tex.App.—Tyler 2003, no pet.); see also In re

K.M.B., 91 S.W.3d 18, 24–25 (Tex.App.—Fort Worth 2002, no pet.) (holding evidence

that mother exposed children to homes with roaches and lice problems, animal feces,

terrible odors, and general filth supported finding that conditions endangered children’s

physical well-being). The children, too, were dirty, regularly seen wearing dirty clothing

and having dark patches of dirt on their bodies. The children were often absent from

school, and there is evidence that they had ingested sleeping medication.

Likely as a result of their living conditions and lack of care, the children regularly

had rodent droppings in their hair and suffered from chronic lice infestations. Such

evidence speaks to an environment in which the children’s physical, emotional,

hygienic, and medical needs were neglected. See In re P.E.W., 105 S.W.3d at 777

(concluding that child’s exposure to continually unsanitary living conditions, his

continued uncleanliness, and lack of attention to his medical needs were indicia of an

endangering environment). There is also evidence that suggests that, while in the

home, the girls were sexually abused by an uncle, most certainly an endangering

surrounding. See In re A.B., 125 S.W.3d 769, 775–76 (Tex. App.—Texarkana 2003,

pet. denied). The evidence also shows that the parents failed to maintain stable

housing or employment over the years. Based on such evidence, the trial court could

have concluded that a lifestyle of such uncertainty and instability endangered the

children’s physical and emotional well-being. See In re S.D., 980 S.W.2d 758, 763

13 (Tex.App.—San Antonio 1998, pet. denied) (in endangering conduct analysis, holding

that conduct which subjects child to unstable life endangers the child’s well-being).

Based on the foregoing evidence, a reasonable trier of fact could have formed a

firm belief or conviction that Johnny and Christina knowingly placed or knowingly

allowed the children to remain in conditions that endangered their physical or emotional

well-being. See TEX. FAM. CODE. ANN. § 161.001(1)(D). We overrule their first issues.

Best Interest of the Children

The Texas Supreme Court has recognized a non-exhaustive list of factors that

are pertinent to the inquiry whether termination of parental rights is in the best interest of

the child: (1) the desires of the child; (2) the emotional and physical needs of the child

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

which may indicate that the existing parent-child relationship is not a proper one; and (9)

any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976); see also TEX. FAM. CODE ANN. § 263.307 (West 2009) (providing

extensive list of factors that may be considered in determining child’s best interest). In

examining the best interest of the child, we may consider evidence that was also

probative of the predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best

14 interest determination may rely on direct or circumstantial evidence, subjective facts,

and the totality of the evidence. In re N.R.T., 338 S.W.3d at 677.

The Department need not prove all nine Holley factors, and the absence of

evidence relevant to some of those factors does not bar a finding that termination is in

the child’s best interest, especially in the face of undisputed evidence that the parental

relationship endangered the child. See C.H., 89 S.W.3d at 27. No one Holley factor is

controlling, and evidence of one factor may be sufficient to support a finding that

termination is in the child’s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex.App.—

Dallas 2006, no pet.).

For evidence regarding the children’s desires, we look to Lefevre’s testimony.

Based on her observations during two years of counseling J.R. and L.R., Lefevre

testified that termination would have “a very positive impact” on J.R. by allowing her to

complete the grieving process and move forward. In the two months preceding trial,

J.R. had come to accept that her parents were not going to complete services and

secure the return of the children, and she had finally expressed interest in being

adopted. L.R. was further along in this respect; she had no interest in seeing Johnny

and Christina again and expressed that it was her “Christmas wish” that their rights be

terminated so she could be in a position to find a permanent family. Lefevre added that

termination would make L.R. “extraordinarily happy” and decrease her anxiety related to

the lack of permanence.

Lefevre observed that both J.R. and L.R. do still love their parents but explained

that both are looking toward permanency in an adoptive family. While we do not

15 minimize the natural affection the children would have toward their biological parents,

we cannot permit that affinity to take priority over the needs of the children:

Although a child’s love of his natural parents is a very important consideration in determining the best interests of the child, it cannot override or outweigh the overwhelming and undisputed evidence showing that the parents placed or allowed the child to remain in conditions, and engaged in conduct or placed the child with persons who engaged in conduct, which endangers the physical and emotional well-being of the child. The child’s love of his parents cannot compensate for the lack of an opportunity to grow up in a normal and safe way equipped to live a normal, productive, and satisfying life.

In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.).

J.R.’s and L.R.’s expressions of their desire for permanence is relevant to the

children’s present and future needs as well. As demonstrated by J.R.’s and L.R.’s

expressions of their desire for a permanent family, the need for permanence for the

child is a compelling consideration in examining the child’s present and future physical

and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex.App.—Dallas 1987, writ

ref’d n.r.e.) (en banc). Further, there is little doubt that the girls will have ordinary

medical needs as they grow, and the record suggests they will have a few special

medical and emotional considerations. Lefevre testified to the continued but improved

emotional and behavioral struggles that J.R. and L.R. have addressed during their

counseling sessions. J.R. and H.R. have low IQs and function below their ages. The

record also shows that B.R. was diagnosed with mental deficiencies and that both she

and H.R. require speech therapy. Johnny and Christina have shown themselves to be

wholly inadequate to deal with any of the girls’ present and future needs. Based on the

evidence before it, the trial court also could have concluded that a real danger exists

16 that Johnny and Christina would not be able to meet the children’s compelling need for

permanence or their need for appropriate housing and medical care. See D.O. v. Tex.

Dep’t of Human Servs., 851 S.W.2d 351, 358 (Tex.App.—Austin 1993, no writ).

As to present and future danger to the girls, the record shows that Johnny and

Christina have a pattern of moving with alarming frequency and have failed to maintain

stable employment. Their pattern of inadequate housing, unemployment, and general

instability poses a threat to the physical and emotional well-being of the children. See

In re C.A.J., 122 S.W.3d 888, 894 (Tex.App.—Fort Worth 2003, no pet.). Further,

though not fully developed in the record, there are allegations that the girls were victims

of sexual abuse. The trial court could have concluded, based on the chronically

inadequate, unsafe environment in which the girls lived, continued presence in such an

environment posed a threat of danger to their well-being.

In a related observation, we add that, after the initial removal, the girls were

returned to the home for some time. They were removed again, however, following

reports of truancy and continued lice infestation and rodent droppings in their hair. The

trial court was authorized to consider this evidence of repeated, chronic neglect that

was left unaddressed even after the Department intervened. See TEX. FAM. CODE ANN.

§ 263.307(b)(4).

In addition to the evidence presented to the trial court that Johnny and Christina

had failed to meet the physical and emotional needs of these four daughters, the trial

court also considered evidence pertaining to Christina’s extensive history with the

Department and shockingly inadequate parenting that has spanned decades and

17 affected a number of children. As noted, in September 2011, Johnny’s and Christina’s

rights to an infant son, J.R., were terminated. But it was years earlier, in 1990, that

Christina’s parenting first came to the Department’s attention. One son, J.P., died of

multiple blunt force trauma to the head, and the Department notes that Christina

confessed to having dealt the blows. Another son, C.F., was placed in the permanent

managing conservatorship of the Department, and her rights to another son, B.B., were

terminated. There were allegations of physical neglect of yet another son, A.W., who

also later died. So, we have knowledge of at least nine children to whom Christina has

given birth. Of those nine children, two have died under, at least, suspicious

circumstances, and her parental rights to the other seven were terminated, or in the

case of C.F., restricted. No evidence indicates that Christina has successfully cared for

any one of her many children. The trial court could have considered her extensive and

troubling parental history. See id. Johnny, too, has a troubling past. He has a criminal

history of sexual offenses having been committed in Iowa and involving two female

victims ages nine and fourteen. Both Johnny’s and Christina’s histories in regard to

other children are considerations relevant to the best interests of these children. See

TEX. FAM. CODE ANN. § 263.307(b)(7); In re C.H., 89 S.W.3d at 28.

Though the Department has made programs available to Johnny and Christina,

the record suggests that the two have demonstrated no motivation to complete such

services. Their failure to take advantage of the plans and services offered by the

Department in an effort to reunite the family is a relevant consideration in determination

of the best interest of the child. In re M.R., 243 S.W.3d 807, 821 (Tex.App.—Fort Worth

2007, no pet.); see TEX. FAM. CODE ANN. § 263.307(b)(10) (providing as a consideration 18 the family’s willingness “to seek out, accept, and complete counseling services and to

cooperate with and facilitate an appropriate agency’s close supervision”).

The trier of fact may compare the parents’ and the Department’s permanency

plans in determining the best interest of the child and consider whether the respective

plans and expectations of each party are realistic or weak and ill-defined. See In re

D.O., 851 S.W.2d at 358. Further, the trier of fact may consider the possible

consequences of a decision not to terminate. See id.

H.R. is to be adopted into the home with her younger brother; the Department

has expressed its goal that J.R., L.R., and B.R. be adopted as a sibling group. The

record shows that the foster families currently make arrangements so that all five

siblings maintain contact by phone and in person. The Department has taken measures

to ensure that the siblings remain bonded. On the other hand, Johnny and Christina

have presented no evidence regarding any plans for the children or goals for the family.

During their last contact with the Department, Johnny and Christina would not even

disclose to the Department where they were living. They have completed no services

and failed to maintain regular visitation. Based on that evidence, the trial court could

have concluded that Johnny and Christina have made no plans for the children.

So, while the Department explained that it cannot guarantee that J.R., L.R., and

B.R. will be adopted into a single home, in relative terms, the Department’s plans

appear to be more developed and more directed at protecting the physical and

emotional well-being of the children. And, while Johnny and Christina complain on

appeal that separating the five siblings even into only two homes is not in the children’s

19 best interest, the evidence is such that the trial court could have soundly determined

that being adopted separately, though not ideal, is far better for their emotional and

physical well-being than (1) the “unthinkable” development, according to Lefevre, of

being returned to the care and custody of parents who have wholly failed to care for

their physical and emotional needs or (2) the “very, very sad” prospect of remaining in

foster care with no chance at being adopted into a stable home while the Department

continues to try to offer services to biological parents who have expressed little to no

interest in completing services required to secure reunification of their family.

Johnny and Christina maintained only sporadic and increasingly infrequent

visitation with the girls, another consideration in the best interest determination. Dowell

v. Dowell, 276 S.W.3d 17, 22 (Tex.App.—El Paso 2008, no. pet.). Even after years of

Department intervention, they have offered no excuse for their acts or omissions. In

fact, the Department noted they denied any deficiency in their parenting skills. Failure

to maintain regular contact with the girls and refusal to even acknowledge parental

deficiencies are relevant to a determination that termination of parental rights serves the

children’s best interest. Based on the evidence before it, the trial court could have

found by clear and convincing evidence that termination of the parent-child relationship

was in the children’s best interest. Legally and factually sufficient evidence supports

such a finding, and we overrule Johnny’s and Christina’s issues asserting otherwise.

Clear and convincing evidence supports the following three findings: (1) the

circumstances of involved parties had materially and substantially changed since the

rendition of the 2009 Order; (2) Johnny and Christina placed the four girls or allowed

20 them to remain in conditions or surroundings which endangered their physical and

emotional well-being; and (3) termination of Johnny’s and Christina’s parental rights was

in the best interest of J.R., L.R., B.R., and H.R. Accordingly, we overrule Johnny’s and

Christina’s issues challenging the sufficiency of the evidence. Because the Department

need only prove one predicate act under section 161.001(1), we need not address their

issues challenging the evidence supporting other statutory grounds for termination. See

In re A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1.

Conclusion

Having overruled Johnny’s and Christina’s issues, we affirm the trial court’s order

terminating their parental rights to children, J.R., L.R., B.R., and H.R.

Mackey K. Hancock Justice