TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00243-CV
S. S. F., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 424TH DISTRICT COURT OF BURNET COUNTY NO. 53457, THE HONORABLE CHERYLL MABRAY, JUDGE PRESIDING
MEMORANDUM OPINION
S.S.F. (Mother) appeals the trial court’s “Order Terminating the Parent-Child
Relationship,” which was rendered after a bench trial and terminated Mother’s parental rights to
four of her children. The four children were eleven years, five years, two years, and about four
months old at the time of trial. In three appellate issues, Mother challenges the sufficiency of the
evidence to support (a) the two statutory predicate grounds that supported the termination of her
parental rights—Paragraphs (N) and (O)—and (b) the statutory best-interest ground. See Tex.
Fam. Code § 161.001(b)(1)(N), (O), (2). We affirm.
APPLICABLE LAW AND STANDARD OF REVIEW
To terminate parental rights, the Department of Family and Protective Services
must prove both (1) one of the statutory predicate grounds and (2) that termination is in the best
interest of the child. See id. § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department must prove both elements by clear and convincing evidence. See Tex. Fam. Code
§ 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘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 § 101.007;
accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Legal-sufficiency review of the evidence to support termination requires reviewing
all the evidence in the light most favorable to the finding under attack and considering undisputed
contrary evidence to decide whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).
“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding
against all the evidence favoring the finding.” Id. at 631. “Evidence is factually insufficient if,
in light of the entire record, the disputed evidence a reasonable factfinder could not have credited
in favor of a finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” Id.
When reviewing the evidence, we must “provide due deference to the decisions of
the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole
arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,
503 (Tex. 2014). The factfinder has a right to disbelieve any witness’s testimony. See S.C. v.
Texas Dep’t of Fam. & Protective Servs., No. 03-20-00039-CV, 2020 WL 3892796, at *15 (Tex.
App.—Austin July 10, 2020, no pet.) (mem. op.). And it is the factfinder’s role to draw any
reasonable inferences from the evidence and to choose between conflicting reasonable inferences.
See In re J.W., 645 S.W.3d 726, 745 (Tex. 2022); B.D. v. Texas Dep’t of Fam. & Protective Servs.,
2 No. 03-20-00118-CV, 2020 WL 5100641, at *17 (Tex. App.—Austin Aug. 28, 2020, pet. denied)
(mem. op.).
EVIDENCE SUFFICIENCY—PARAGRAPH (O)
In her second issue, Mother raises the sufficiency of the evidence to support
terminating her parental rights under statutory predicate Paragraph (O). To prove this predicate,
the Department must prove by clear and convincing evidence that the parent
[(1)] failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child [(2)] who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months [(3)] as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.
Tex. Fam. Code § 161.001(b)(1)(O); see M.D. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-20-00531-CV, 2021 WL 1704258, at *9 (Tex. App.—Austin Apr. 30, 2021, no pet.) (mem.
op.). Mother concedes Department conservatorship for the required period: “Mother does not
dispute the fact that the children were in the conservatorship of the Department for at least nine
months.” Her appellate challenge is instead limited to arguing that (1) the Department did not
prove that the children were removed for abuse or neglect and (2) she did prove her affirmative
defense under Family Code section 161.001(d).
Abuse or Neglect
When proving removal for “abuse and neglect,” the Department need not prove
actual harm to all children who are the subject of the suit. Instead, because the term “abuse or
neglect” is “‘used broadly’ in (O),” the term “necessarily includes the risks or threats of the
3 environment in which the child is placed.” In re A.A., 670 S.W.3d 520, 528 (Tex. 2023) (quotation
omitted) (quoting In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013)).
The evidence from Mother’s trial was legally and factually sufficient to support that
the children were removed from Mother for abuse or neglect. A Department witness testified that
the Department’s initial involvement with Mother and the children came on the heels of outcries
that one of the children made at school. The child reported “that she had witnessed her mom
stomping on the head of her baby brother and that now he was no longer in the home and that
mom was looking for a place for the kids to go.” (Emphasis added.) Other testimony described
the condition of Mother’s trailer home, where she lived with the four children, around the time of
removal: it had a strong smell of urine and feces in the children’s rooms; there was a roach
infestation; there were holes or “soft spots” in the floor, including some with jagged edges, through
which you could see the ground or a child could fall or get a limb stuck; there was “loose
electrical”; most electric outlets lacked outlet covers; there was an extension cord running through
the middle of a room to an overhead light; one of the two bathrooms did not work because it was
under construction; outside, there was broken glass and pieces of wood, some with large, rusty
nails sticking out; the home’s underpinning had several sharp edges sticking up; the front door was
detached from its frame; the back steps were unstable; and the home’s condition “needed a lot of
work,” in one caseworker’s words. All this testimony supports the “abuse or neglect” finding
under the applicable standards. See id.; M.D., 2021 WL 1704258, at *9 (consideration of whether
abuse or neglect is shown involves determining “whether a person of reasonable prudence
could have found that [the child] faced an immediate danger to [her] health or safety” (quotation
omitted) (quoting C.L.J. v. Texas Dep’t of Fam. & Protective Servs., No. 03-13-00646-CV,
2014 WL 1203239, at *6 (Tex. App.—Austin Mar. 20, 2014, pet. denied) (mem. op.))).
4 Mother’s arguments to the contrary amount to disputing the meaning of some of
the evidence that we have recounted and asserting simply that no evidence was presented to
support the necessary finding. But the evidence we rely on supports the necessary finding under
the legal- and factual-sufficiency standards, so we overrule this portion of Mother’s second issue.
Section 161.001(d) Affirmative Defense
The Section 161.001(d) affirmative defense prevents terminating rights under
Paragraph (O) for failure to comply with a court order when the parent proves by a preponderance
of the evidence that (1) the parent was unable to comply with specific provisions of the court
order at issue and (2) the parent made a good-faith effort to comply with the order and the
failure to comply with the order is not attributable to any fault of the parent. See Tex. Fam. Code
§ 161.001(d)(1)–(2); C.C.F. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00152-CV,
2020 WL 4929782, at *3 (Tex. App.—Austin Aug. 19, 2020, pet. denied) (mem. op.). The parent
bears the burden of proof on this affirmative defense and so must come forward with evidence to
support its elements. See C.C.F., 2020 WL 4929782, at *4–5.
For a legal-sufficiency attack on an issue on which the appealing party bore the
burden of proof, the attack succeeds only if the party shows that “the record conclusively
establishes all vital facts in support of the issue.” See Shields Ltd. P’ship v. Bradberry, 526 S.W.3d
471, 480 (Tex. 2017). For a similarly postured factual-sufficiency attack, the appealing party must
show that the finding on the relevant issue “is against the great weight and preponderance of
the evidence.” See Fox v. O’Leary, No. 03-11-00270-CV, 2012 WL 2979053, at *3 (Tex. App.—
Austin July 10, 2012, pet. denied) (mem. op.). In a factual-sufficiency review, “[w]e may not
substitute our own judgment for that of the factfinder, even if the evidence would support a
5 different result.” Saltworks Ventures, Inc. v. Residences at the Spoke, LLC, No. 03-16-00711-CV,
2018 WL 2248274, at *6 (Tex. App.—Austin May 17, 2018, no pet.) (mem. op.).
Under those standards, the record supports the trial court’s rejection of the
affirmative defense because Mother failed to show that she was unable to comply with specific
provisions of the court order at issue. See Tex. Fam. Code § 161.001(d)(1). Mother’s appellate
brief identifies her efforts to comply with the relevant court order, mentioning her attendance for
certain services, participating in mediation to arrive at a service plan that would meet her unique
needs, and making efforts to improve her home. But Mother does not identify any specific
provisions of the court order that she was unable—that she could not—comply with. See id.;
C.C.F., 2020 WL 4929782, at *4. Mother put on no evidence at trial, and the most her brief
identifies in support is that she had a low IQ, lacked reliable transportation and reliable phone
access, and did not know what further services were required of her. This evidence does not
conclusively prove that Mother was unable to comply with any specific provision of the court’s
order; all the evidence rather shows, when viewed in the light most favorable to the trial court’s
termination order, that Mother could have met all the order’s requirements because she had met
and was meeting at least some of its requirements. The court’s decision also was not against the
great weight and preponderance of the evidence. For example, evidence showed that Mother
communicated with Department personnel from time to time, either when her phone was working
or through intermediaries like her mother. And her low IQ did not prevent her from taking some
steps to comply with parts of the service plan that was negotiated to meet her specific needs. It
is reasonable to infer that she knew what her service plan required of her because her and her
attorney’s signatures and initials are shown on the negotiated service plan filed with the court.
In all, the evidence was legally and factually sufficient for the trial court to refuse, as it did, to
6 find that Mother had met her burden under Section 161.001(d)(1). We thus overrule the rest of
Mother’s second issue.
Because we overrule Mother’s challenge under the Paragraph (O) predicate, and
because only one such statutory predicate is needed to support terminating parental rights, we need
not reach Mother’s first appellate issue, which challenges the Paragraph (N) finding made against
her. See Tex. R. App. P. 47.1; In re N.G., 577 S.W.3d 230, 232–33 (Tex. 2019) (per curiam).
EVIDENCE SUFFICIENCY—BEST INTEREST
In her third issue, Mother maintains that the evidence was legally and factually
insufficient to support the statutory best-interest finding made against her. See Tex. Fam. Code
§ 161.001(b)(2). When reviewing best-interest findings, factors that courts consider include
(1) the child’s wishes, (2) the child’s emotional and physical needs now and in the future,
(3) emotional or physical danger to the child now and in the future, (4) the parenting abilities of
the parties seeking custody, (5) programs available to help those parties, (6) plans for the child by
the parties seeking custody, (7) the stability of the proposed placement, (8) the parent’s conduct
that may indicate that the existing parent–child relationship is improper, and (9) any excuses for
the parent’s conduct. J.W., 645 S.W.3d at 746. This list of factors is not exhaustive, not all of
them need be proven to determine a child’s best interest, and proof of only one factor may be
adequate in a particular factual context to support termination. See M.L. v. Texas Dep’t of Fam.
& Protective Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *5 (Tex. App.—Austin Feb. 16,
2023, no pet.) (mem. op.); S.C., 2020 WL 3892796, at *16. Evidence probative under the statutory
predicate grounds may also be probative of best interest. A.C., 560 S.W.3d at 631–32.
7 Under the first factor—the children’s wishes—evidence showed that the children
were improving in their placements with relatives or in one child’s case, in a therapeutic-home
placement that addresses the child’s special needs, with each child bonding with their caregivers.
See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“When
children are too young to express their desires, the fact finder may consider that the children have
bonded with the foster family, are well-cared for by them, and have spent minimal time with a
parent.”); accord J.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00583-CV, 2023 WL
2169492, at *5 (Tex. App.—Austin Feb. 23, 2023, no pet.) (mem. op.). And though there is no
direct evidence of the children expressing their wishes, circumstantial evidence suggested that
seeing Mother frightens the children. See J.G. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-22-00790-CV, 2023 WL 3634364, at *8 (Tex. App.—Austin May 25, 2023, no pet.) (mem.
op.) (“The lack of an emotional bond between the child and the parent is relevant in determining
the child’s desires.”). One of the daughters has begun visitations with Mother by crying loudly
and clinging to her caregiver as soon as Mother arrives, not calming down for at least a couple of
hours, and the child has lunged at Mother, scratched Mother’s face, and pulled her and others’ hair
(a Court Appointed Special Advocates worker lost some hair in one such incident). The other
three children would tend to avoid Mother during visits. And the oldest child has a problem with
defecating on himself, which worsens around the time of visits with Mother. Mother raises the
fact that the Department forbade her from visits for about four months during the suit, but evidence
showed that the Department did so to prevent Mother’s headlice problem from reinfesting the
children after their headlice problems had cleared up after treatment. Visits later resumed. Mother
also raises a caseworker’s admission that the children’s reactions should not be held against
Mother because she had been barred from visits for months. But the trial court as factfinder had a
8 right to disregard this testimony in favor of the reasonable inferences that the children’s reactions
give rise to. In all, the evidence under this first factor weighs in favor of termination.
Under the second, third, fourth, seventh, and eighth best-interest factors, several
topics from the evidence are relevant. Potential exposure to domestic violence in a home weighs
against keeping children in the home, see In re R.B., No. 05-21-00043-CV, 2021 WL 2943927,
at *14 (Tex. App.—Dallas July 9, 2021, no pet.) (mem. op.), and an officer testified that he
recently arrested the father of some of the children because the father had allegedly assaulted
Mother at Mother’s home. This episode occurred even though, the evidence suggested, Mother
was supposed to stay away from the father, and she had hidden her continuing relationship with
him from the Department. There had been other allegations of domestic violence between them
in the past. The officer applied for an emergency protective order on Mother’s behalf.
Next, we consider relevant the evidence recounted above about the state of
Mother’s home as against the children’s placements, which facilitated improvements in the
children’s behavior, and the children’s headlice before first coming into Department care. See
Spurck v. Texas Dep’t of Fam. & Protective Servs., 396 S.W.3d 205, 223 (Tex. App.—Austin
2013, no pet.) (factfinder may weigh “the relative parenting abilities of the parties seeking
custody”). In addition, testimony suggested that the children ate ravenously at their placements
because they had not been getting enough to eat while with Mother. All this led a caseworker to
testify that Mother’s home still is not safe or predictable for the children. On the other hand, there
was evidence that Mother had improved the conditions of her home, including replacing the front
door and carpet, exterminating the roaches, providing beds for the children, and cleaning much of
the debris from the yard, and that she had taken many classes that the Department required of her,
including a class on personal hygiene. But other testimony showed that she had not completed
9 everything, had not even begun the Department-required therapy appointments with a counselor,
and did not show improvement in parenting during visits even after having attended some
parenting classes. See D.W. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00455-CV,
2022 WL 91972, at *8 (Tex. App.—Austin Jan. 6, 2022, pet. denied) (mem. op.) (holding that
evidence was sufficient to support “best interest” finding in part because of parent’s lack of
improvement in “parenting abilities and stability”). And problems in the home persisted—still
some outlets uncovered, the bathroom under construction, the floor’s soft spots, the unstable back
steps, and some wood and nails still in the yard—and when the officer visited shortly before trial,
the home lacked electricity. Given the evidence, we consider the second, third, fourth, seventh,
and eighth best-interest factors as supporting termination.
Under the sixth factor, Mother adduced no evidence of her own to show her plans
for the children. See In re K.C., No. 07-18-00282-CV, 2018 WL 6729944, at *5 (Tex. App.—
Amarillo Dec. 21, 2018, pet. denied) (mem. op.) (because parent “chose not to provide the court
any information through testimony,” court of appeals was “not informed of matters critical to the
best-interest determination such as [parent]’s rehabilitation or his plans for family”). But evidence
did show the plans for the children in their placements. There were people prepared to adopt
each child, see S.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00476-CV, 2023 WL
402206, at *6 (Tex. App.—Austin Jan. 26, 2023, no pet.) (mem. op.) (considering plans for
adoption when reviewing this best-interest factor); each placement communicates with the others
regularly about the children and their progress; and for the child with special needs, the therapeutic
home had the transportation and time available to transport the child to his many medical or
therapeutic appointments. Mother, by contrast, lacks reliable transportation, but she does enjoy a
lot of support from family and friends. This factor weighs at least slightly in favor of termination.
10 We consider the fifth best-interest factor to be neutral for lack of any evidence that
is best analyzed only under that factor. Under the ninth and final factor, there was competing
evidence whose conflict we need not resolve. Evidence showed that Mother has mental
deficiencies, and each side argues about how that evidence should be weighed, with Mother
arguing that her low IQ cannot be held against her and the Department arguing, in line with one of
its witnesses’ testimony, that Mother’s mental deficiencies prevent her from properly caring for
the children. We need not resolve this conflict because the evidence under the rest of the factors
can suffice to support termination. See M.L., 2023 WL 2025710, at *5; S.C., 2020 WL 3892796,
at *16. Under the applicable legal- and factual-sufficiency standards, the evidence allowed the
trial court to form a firm belief or conclusion that terminating Mother’s parental rights was in the
children’s best interest, and no evidence in Mother’s favor prevented such a firm belief or
conclusion. We thus overrule Mother’s third issue.
CONCLUSION
We affirm the trial court’s termination order.
__________________________________________ Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Affirmed
Filed: September 27, 2023