in the Interest of T.S., R.S., I.S., and S.S., Children

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00260-CV

IN THE INTEREST OF T.S., R.S., I.S., AND S.S., CHILDREN

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 72,959-B, Honorable Jack M. Graham, Presiding

December 5, 2019

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Mother appeals the trial court’s termination of the parent-child relationship between

her and her four children, T.S., R.S., I.S., and S.S. On appeal, she challenges the

sufficiency of the evidence, the trial court’s admission of testimony over her hearsay

objection, and the trial court’s failure to file findings of fact and conclusions of law. We

affirm.

Background

The relationship between the biological mother and father of these four children

involved years of physical abuse by the father. He admitted to having hit Mother several times in the presence of the children. Father also had an ongoing methamphetamine

addiction. Mother did not use drugs.

After Mother and Father separated due to Father’s conduct, Mother began a

relationship with Houston.1 This relationship involved Houston engaging in physical

abuse directed at the children and drug use, as well. Mother and the Department knew

that Houston regularly used marijuana. In connection with earlier Department

involvement, the Department advised Mother to refrain from allowing the children to be

left in Houston’s care. Mother disregarded that advice. Furthermore, Houston undertook

disciplining the children regularly. The discipline was excessive, and Mother noted that

the children suffered pain longer than what should be expected after spankings from

Houston. Mother directed him to discontinue his physical discipline of the children.

Mother noted the bruises but, despite already noting the severity of the “spankings,”

attributed the bruises to ordinary childhood play and such. Though she did acknowledge

at trial that Houston abused the children, her initial reactions were marked by denial.

Photographs of the bruising were made part of the record.

During one incident shortly after Mother’s directive to stop spankings, in late

December 2017, Houston pushed three-year-old I.S. into a wall and caused injury to his

face.2 This incident precipitated CPS to become involved with the family again and led

to the children’s removal. Mother believed this to be an accident and, even when

1 Father had spent some time in drug rehabilitation facilities in both Texas and Colorado. Following his return to Amarillo and at the time of the instant hearing, he was incarcerated on pending charges of assault–family violence against Mother and of violation of a protective order by contacting Mother. Father testified at the hearing and, although his parental rights were also terminated at this time, he has not appealed that judgment. 2 The Department introduced evidence that, as a result of this contact, Houston had been indicted for injury to child at the time of the hearing.

2 confronted with statements to the contrary from the Department, did not acknowledge

Houston’s abuse. She, instead, continued to characterize him as a good person and

continued the relationship. Eventually, the relationship ended after the children were

removed.

Mother also occasionally left the children in the care of a friend whose home was

filthy and posed serious physical dangers to the children. When the investigator visited

the babysitter’s home, she observed the children dirty and disheveled laying under a

blanket covered in piles of dog feces. Garbage, lighters, gas can, cleaning supplies,

boards, and knives were strewn about the home and within the children’s reach. Mother

maintains that she was unaware of these conditions because she had never gone to that

home; the babysitter would pick the children up at Mother’s home.

The trial court found that Mother knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endanger the physical or emotional

well-being of the children and engaged in conduct or knowingly placed the children with

persons who engaged in conduct which endangers the physical or emotional well-being

of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) (West Supp. 2019). It

also found that termination of the parent-child relationship was in the best interest of the

children. See id. § 161.001(b)(2). Mother has perfected the appeal.

Mother presents four issues for this court’s review. She maintains that the trial

court erred by failing to file findings of fact and conclusions of law. She also contends

that the trial court abused its discretion when it admitted over hearsay objection a CPS

investigator’s statement regarding the report by the eldest child that Mother left the

children alone. She also challenges the sufficiency of the evidence to support the trial

3 court’s finding of the predicate grounds for termination and of the trial court’s finding that

termination of the parent-child relationship was in the children’s best interests.

Issues Three and Four - Sufficiency of the Evidence

We first address Mother’s sufficiency arguments, presented as her third and

fourth issues. We do so because they would provide her the greatest relief if sustained.

See In re K.W., 138 S.W.3d 420, 428 (Tex. App.—Fort Worth 2004, pet. denied) (“When

a party presents multiple grounds for reversal of a judgment on appeal, the appellate court

should first address those points or issues that would afford the party the greatest relief.”).

We overrule both issues.

The Texas Family Code allows a court to terminate the relationship between a

parent and a child if the party seeking termination establishes (1) one or more acts or

omissions enumerated under § 161.001(b)(1) and (2) termination of that relationship is in

the child’s best interest. In re K.M., No. 07-19-00073-CV, 2019 Tex. App. LEXIS 4178,

at *1 (Tex. App.—Amarillo May 21, 2019, pet. denied) (mem. op.); see TEX. FAM. CODE

ANN. § 161.001(b)(1)-(2). Both elements must be established by “clear and convincing

evidence.” See In re K.M., 2019 Tex. App. LEXIS 4178, at *1. That standard is met when

the evidence of record “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.” Id. In reviewing whether the

evidence is sufficient to do that, we apply the tests described in In re K.M.L., 443 S.W.3d

101, 112–13 (Tex. 2014), and In re K.V., No. 07-16-00188-CV, 2016 Tex. App. LEXIS

11091, at *6–8 (Tex. App—Amarillo Oct. 11, 2016, no pet.) (mem. op.). And, in applying

4 those tests to the finding of best interest, we compare the evidentiary record to the factors

itemized in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).3

Section 161.001(b)(1)(D) permits termination when clear and convincing evidence

shows 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). It requires a showing that the child’s

environment posed a danger to the child’s physical or emotional health, and it permits

termination based on a single act or omission by the parent. In re M.M., No. 07-19-00105-

CV, 2019 Tex. App. LEXIS 7505, at *7 (Tex. App.—Amarillo Aug. 21, 2019, pet. denied)

(mem. op.). Though the subsection concerns the child’s living environment, a parent’s

conduct may be considered since it may create an environment endangering the child.

Id. at *8.

Under subsection (E), the relevant inquiry is whether there exists evidence

illustrating that the endangerment of the child’s well-being was the direct result of the

parent’s conduct, which conduct includes her acts and omissions. Id. Termination under

subsection (E) must be based on more than a single act or omission but rather on a

voluntary, deliberate, and conscious course of conduct by the parent. Id. at *8–9.

3 The Holley factors are as follows: (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 parenting abilities of the parent seeking custody; (5) the programs available to assist the parent; (6) the plans for the child by the parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions committed by 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 committed by the parent. Holley, 544 S.W.2d at 372. Furthermore, the evidence need not establish that all the Holley factors support the conclusion that termination is in the child’s best interest, and the absence of evidence of some factors does not preclude the fact-finder from reasonably forming a strong conviction that termination is in the child’s best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

5 Subsections (D) and (E)4

By permitting Houston into the home and allowing him to remain after being made

aware that he was using excessive force against the children, Mother created an

environment that posed a danger to the children. Her failure to protect the children not

only subjected them to the immediate physical threat Houston posed but also left the

children vulnerable in a more general sense to the impact of having been abused. See

In re L.C., 145 S.W.3d 790, 797–98 (Tex. App.—Texarkana 2004, no pet.) (finding

sufficient evidence under subsection (E) when mother knew of abuse allegations but

failed to adequately protect her children, noting that “[w]ithout the protection of their

mother, the children may suffer continued abuse and may feel less inclined to report any

abuse”).

Again, though Mother maintains she was unaware of Houston’s abuse, the

factfinder could reasonably deem her position disingenuous; the record contains evidence

indicating she was well aware of the risk prior to the December 2017 incident

necessitating the children’s removal. She advised Houston that he should no longer

spank the children days prior to the incident in which he shoved I.S. into a wall and injured

his face. Even if she remained uncertain as to whether Houston intentionally caused the

injury to I.S.’s face and the bruises on the children, it is sufficient that she was aware of

the potential for abuse of the children and disregarded that risk. See In re Tidwell, 35

S.W.3d 115, 119–20 (Tex. App.—Texarkana 2000, no pet.)

4 As we have noted, there are specific considerations as to subsections (D) and (E), but we note

that endangerment of the child’s physical or emotional well-being is an element of both subsections (D) and (E). See In re N.K., 399 S.W.3d 322, 329–30 (Tex. App.—Amarillo 2013, no pet.). Because evidence concerning subsections (D)’s and (E)’s statutory grounds for termination is interrelated, we will consolidate our review of the evidence supporting these grounds and note, when and if necessary, any relevant distinctions to be drawn. See id.

6 With regard to the abuse in the marriage, it too endangered the children. See In

re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.); see also In re A.R.E.,

No. 14-19-00437-CV, 2019 Tex. App. LEXIS 9685, at *17 (Tex. App.—Houston [14th

Dist.] Nov. 5, 2019, no pet. h.) (mem. op.) (“Violent conduct by a parent toward the other

parent may produce an environment that endangers the physical or emotional well-being

of a child.”). Further, a parent’s failure to remove herself and her children from a violent

relationship endangers the physical or emotional well-being of the children. See In re

I.G., 383 S.W.3d at 770.

From her failure to protect the children from Houston’s abuse and her pattern of

remaining in abusive relationships without regard to the impact that the abuse had on the

children, we conclude that the evidence was legally and factually sufficient for the

factfinder to form a firm conviction and belief that Mother placed the children in conditions

and engaged in conduct which endangered their physical and emotional well-being. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).

Best Interest

For many of the same reasons, we conclude that the Holley factors weigh in favor

of the trial court’s finding that termination of the parent-child relationship is in the children’s

best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). For years, the children had

been exposed to drug use and physical abuse. Indeed, continued exposure to domestic

violence and drug abuse are circumstances supporting a determination that termination

of the parent-child relationship is in the child’s best interest. See In re K.M., 2019 Tex.

App. LEXIS 4178, at *5; In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007,

no pet.).

7 Additionally, a parent’s failure to protect his child weighs in favor of the finding that

termination is in the child’s best interest. See In re A.J.H., No. 01-18-00245-CV, 2019

Tex. App. LEXIS 223, at *36 (Tex. App.—Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem.

op.). Mother permitted Houston into the family home when she knew he regularly used

drugs. Though she claims that she was unaware of his abuse, the record belies her

claims. Even prior to the children’s removal, she knew that his discipline was excessive

when she directed him to refrain from spanking them. In the interim, she employed half

measures and also, for months after the children’s removal, insisted that Houston was a

good person, “a gentle giant.” See Spurck v. Tex. Dep’t of Family & Protective Servs.,

396 S.W.3d 205, 223 (Tex. App.—Austin 2013, no pet.) (noting that the fact-finder could

have reasonably inferred that parent’s past failure to protect child from emotional and

physical danger may suggest likelihood of same failure in the future). Her denial of

Houston’s abuse and his character and her consequential failure to protect the children

reveals she lacked a fundamental understanding of her role as a parent.

Since their removal, the children underwent therapy due to their fears. At the time

of trial, they lived with relatives who have provided them stability, proper care, and a loving

home environment. These relatives also have expressed the desire to adopt the four

children, meaning they can continue to thrive amongst family and with the companionship

of all their siblings.

Based on the record before us, the factfinder could have formed a firm conviction

and belief that termination of the parent-child relationship was in the best interest of the

children.

8 Issue One - Failure to File Findings and Conclusions

Mother complains of the trial court’s failure to file findings of fact and conclusions

of law. We overrule the issue.

Mother requested findings of fact and conclusions of law on July 10, 2019, but did

not file a notice of past due findings. Per our rules of civil procedure,

If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a “Notice of Past Due Findings of Fact and Conclusions of Law”

TEX. R. CIV. P. 297. The failure to file a notice of past due findings of fact forfeits the right

to complain about the trial court’s failure to file findings of fact and conclusions of law.

See Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255 (Tex. 1984). No

such notice appears in the record of this case, and error has not been preserved.

Furthermore, the ultimate issues of fact were stated in the trial court’s judgment.

They consisted of the statutory grounds upon which the trial court relied for terminating

the parental relationship and the finding of best interests. Since findings of fact need only

encompass ultimate facts, see In re M.O., No. 06-19-00004-CV, 2019 Tex. App. LEXIS

5038, at *13 (Tex. App.—Texarkana June 19, 2019, no pet.) (mem. op.), and the ultimate

facts were mentioned in the termination order, it cannot be said that Mother was harmed

by the failure to separately issue findings of fact and conclusions of law. Indeed, the 72-

page brief filed by Mother tends to negate the suggestion that she “cannot properly

prepare her case” to the appellate court.

Issue Two - Admission of Investigator’s Testimony

Mother contends that the trial court abused its discretion when it admitted over her

objection testimony from the investigator that the eldest child, T.S., reported to the

9 investigator that Mother and Houston left the children alone in the home. Despite this

objection a DVD recording of T.S.’s interview at The Bridge was admitted into evidence

by agreement. Per the parties’ stipulation, the trial court agreed to watch and consider

the recorded interviews prior to issuing its ruling. We too have viewed T.S.’s interview

and note that, in that interview, she explained how Mother and Houston wanted to have

a date and left her to watch the other children. T.S. explained that, while she was

watching the children, one of her little brothers got into the fish food and ate it. She

explained that it was supposed to be a quick trip, but it was longer than that. She also

indicated that this happened on more than one occasion. Because the same or similar

evidence was admitted without objection, any error in overruling the hearsay objection

was cured or rendered harmless. See In re J.M., No. 07-13-0011-CV, 2013 Tex. App.

LEXIS 4547, at *5–6 (Tex. App.—Amarillo Apr. 9, 2013, no pet.) (mem. op.). We overrule

Mother’s second issue.

Having overruled Mother’s four issues, we affirm the trial court’s judgment

terminating the parent-child relationships.

Per Curiam