Opinion
14-19-00053-CV
02-17-2022
IN THE INTEREST OF G.X.H., JR. AND B.X.H., CHILDREN
On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2017-04498J
Panel consists of Justices Wise, Jewell, and Hassan.
MEMORANDUM OPINION
KEN WISE, JUSTICE
This is an opinion on remand from the Texas Supreme Court. The Texas Supreme Court overturned this court's opinion that the trial court's decree terminating parental rights was void and remanded to this court for consideration of the remaining issues raised by R.L.C. (Mother) and G.X.H. (Father). The trial court terminated the parental rights of mother and father with respect to their sons, Gregory and Brandon. The trial court also appointed the Texas Department of Family and Protective Services (the Department) to be the managing conservator of the children. Mother and Father each have remaining issues to address on remand, most of which overlap. We affirm in part and reverse in part.
In the first appeal, mother and father argued that the termination decree was void because the trial was not commenced prior to the statutory deadline. We agreed and concluded the trial court's termination decree was void. In re G.X.H., 584 S.W.3d 543 (Tex. App - Houston [14th Dist] 2019), rev 'd, 627 S.W.3d 288 (Tex. 2021). The Texas Supreme Court disagreed and held that the trial court "properly extended the initial dismissal date under Texas Family Code section 263.401(b) and thus retained jurisdiction over the case beyond the initial dismissal date and through the date of the Final Decree." In re G.X.H., 627 S.W.3d 288, 302 (Tex. 2021). This disposition overruled father's issues one and six, and mother's issues one and five. The supreme court remanded the case to this court for consideration of the remaining issues raised by mother and father.
We use pseudonyms or initials to refer to the children, parents, and other family members involved in this case. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
I. Background
The Department received a referral concerning Brandon, a two-month-old infant, who had allegedly choked on a wipe that his sixteen-month-old brother had shoved down his throat while they were riding in their car seats. Father was driving the two boys to pick-up mother from work. When mother came to the car, she observed father removing a baby wipe from Brandon's mouth and blood coming from Brandon's mouth. When Brandon became unresponsive, mother called for emergency services.
An ambulance transported Brandon to the hospital where he was taken for surgery, placed under sedation, and ventilated. Brandon sustained multiple lacerations to his throat and doctors observed that Brandon had bruising on his right eye and left ear. Brandon was ventilated and sedated for more than a week due to his injuries. When Brandon was able to be taken off the ventilator, Brandon had a "g-tube" inserted into his stomach for feeding as he was unable to swallow food normally due to his injuries. Brandon was in the hospital for several weeks before he was discharged. Brandon's doctor did not believe that Brandon's sixteen-month-old brother could have caused Brandon's injuries. Brandon's doctors classified his injuries as serious bodily injuries.
Mother testified that the doctors told her that Brandon had a bruise on his eye and rib fractures. Mother testified that she did not know how any of the injuries occurred but that she thought father had injured Brandon. Mother testified that father was violent toward her, including an incident where he dragged mother out of his car when she was seven months pregnant with Brandon and while Gregory was in the backseat of the car. Mother testified that she thought it was safe to leave the children with father because she had never seen him harm the children but admitted that father had been physically violent to her in front of Gregory while she was pregnant. Mother testified that she was not in a relationship with father any longer and that she had terminated the relationship. Mother was also aware that father had previously assaulted the mother of one of father's other children. In the case report admitted into evidence, mother previously indicated that father was violent with her twice monthly and that the abuse started as verbal abuse but escalated to physical violence. At trial, mother testified that father had only abused her a total of five times.
A case supervisor testified for the Department. The supervisor testified that mother had completed her family service plan, had attended all counseling sessions, and had completed all classes. The supervisor indicated that the request for termination was based upon mother's inability to stay away from father who was abusive and posed a threat to the children. The supervisor testified that father did not complete his service plan and did not visit the children. Father also tested positive for marijuana and cocaine during his drug screenings. The supervisor testified that the Department did not have a permanent placement for the children but had a home study approved for placement in a maternal cousin's home. The goal would be for the cousin to adopt the children and provide long-term placement.
The supervisor testified that Brandon still had medical needs, still had a g-tube for feeding, and requires constant care. The supervisor believed that both Brandon and Gregory would need emotional help now and in the future because of their exposure to physical and emotional abuse. The supervisor did not believe that mother could provide the support the children need because her ongoing relationship with father signaled that she would not protect her children or provide for their needs. The supervisor believed that mother's actions in continuing a relationship with father demonstrated that mother did not learn from her services and did not have the parental abilities necessary to protect and care for her children.
Father testified that mother had regular contact with him and that she met with him at friends' houses, parks, and hotels during the pendency of the case. He testified that they were romantically involved and mother was lying about not having any contact with him. Father also testified that he believed mother should maintain her parental rights. Father has a history of family violence. The records of father's criminal cases involving family violence were admitted into evidence. These records showed father's long history of assault and threats against his family members. In September 2008, father was convicted of terroristic threat for threatening to assault a family member. In March 2014, father pleaded guilty to choking a family member and received deferred adjudication and community supervision for five years. In August 2014, the State moved to adjudicate guilt because father had assaulted another family member by choking. The State withdrew its motion to adjudicate guilt and modified the terms of father's community supervision, including having father write an apology letter to the family member he assaulted. In December 2014, the State again moved to adjudicate guilt because father had committed another assault on a family member. Father was sentenced to three-years imprisonment. In June 2016, father assaulted another family member and was sentenced to 120 days in county jail. Father also tested positive for illegal drugs three times during the pendency of this case, in September 2017 for marijuana, in October 2017 for marijuana and cocaine, and in November 2017 for marijuana.
Brandon's medical records showed that he had multiple healing rib fractures, a possible pelvis fracture, bruises on his eye and ear, and multiple lacerations inside of his throat. Brandon had to be revived by medical personnel, undergo surgery, and remain ventilated and sedated for more than a week because of his injuries. His treating physicians did not believe that Brandon's injuries could have been caused by his one-year-old brother who was restrained in a car seat. The doctors believed that the injury to his throat, ribs, pelvis, and bruising were all a result of abuse.
The trial court concluded that Sections 161.001(b)(1)(D), (E), and (O) were met by both mother and father and that termination of the parental rights of both was in the best interest of Gregory and Brandon. As a result, the trial court terminated mother and father's parental rights to both Gregory and Brandon and appointed the Department as the sole managing conservator of both children. Both mother and father appealed.
II. Predicate Ground for Termination
Mother and father argue that there was legally and factually insufficient evidence to support termination of their parental rights under Section 161.001(b)(1)(D), (E), and (O).
Father raises these as three separate issues, while mother addresses them each as a single issue. We consolidate and address these issues and arguments and address them together.
A. General Legal Principles
Parents' rights to raise and nurture their children are protected by the United States Constitution and the Texas Constitution. In re JF.-G, 627 S.W.3d 304, 311 (Tex. 2021). To deny a parent these rights, the State must establish by clear and convincing evidence both a legal ground to terminate the parent's right and that the termination is in the best interest of the child. Id.; see also Tex. Fam. Code § 161.001.
While this high evidentiary burden requires a heightened standard of review on appeal, it does not dispel the deference that an appellate court must grant to the fact finder. In re J.F.-G., 627 S.W.3d at 311-12. This review "take[s] into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Even in parental termination cases, the appellate court must defer to the trial court's factual determinations because the fact finder is the sole arbiter of the witnesses' credibility and demeanor. In re J.F.-G., 627 S.W.3d at 312. We assume the fact finder resolved conflicting evidence in favor of its finding if a reasonable fact finder could do so. Id. We disregard all evidence that a reasonable fact finder could have disbelieved. Id.
To terminate a parent's legal rights to their children, Section 161.001 of the Texas Family Code requires two findings: (1) the parent's acts or omissions must satisfy an enumerated statutory ground for termination; and (2) termination must be in the child's best interest. See Tex. Fam. Code §161.001; see also Interest of J.F.-G., 627 S.W.3d at 312. There are twenty-one possible grounds for termination. See Tex. Fam. Code § 161.001(b)(1).
Only one predicate finding under Section 161.001(b) is necessary to support a final order of termination when there is also a finding that termination is in the best interest of the child. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re F.M.E.A.F., 572 S.W.3d 716, 736 (Tex. App.-Houston [14th Dist.] 2019, pet. denied). If we conclude that there is sufficient evidence to support one of the predicate findings, generally we need not address the other predicate findings. In re F.M.E.A.F., 572 S.W.3d at 736.
Under subsection (E), a court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in conduct which endangers the physical or emotional well-being of the child. Tex. Fam Code § 161.001(b)(1)(E). The term "endanger" means the child was exposed to loss or injury or jeopardized. In re C.A.B., 289 S.W.3d 874, 882 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (citing Tex. Dep't of Human Servs v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Endangerment encompasses more than a threat of metaphysical injury or possible ill effects of a less-than-ideal environment. Id. (citing Boyd, 727 S.W.2d at 533). The statute does not require that conduct be directed at a child or cause actual harm; rather, it is sufficient if the conduct endangers the emotional well-being of the child. In re J.F.-G., 627 S.W.3d at 312.
Termination under subsection (E) must be based on more than a single act or omission; the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the parent. In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.- Houston [14th Dist] 2017, no pet.). "A parent's abusive or violent conduct can produce a home environment that endangers a child's well-being." In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.). "Domestic violence, want of self control, and propensity for violence may be considered as evidence of endangerment." Id.
B. Termination of Mother's Parental Rights Under Section 161.001(b)(1)(E)
Considering the record evidence in the light most favorable to the trial court's finding, we conclude the evidence is legally sufficient to support the trial court's determination that termination of mother's parental rights was justified under Section 161.001(b)(1)(E) of the Family Code. While mother contends that she did not know that father would abuse the children, mother admitted that father harmed her while she was seven months pregnant in front of Gregory, that father assaulted her at least five times previously, and that she was aware that he had assaulted other family members. See id. ("Thus, the trial court could have considered the domestic violence, especially the blow that hit J.I.T.P. and the parents' altercation during Heather's pregnancy, as evidence of endangerment to J.I.T.P."); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.) ("[A]busive or violent conduct by a parent . . . may produce an environment that endangers the physical or emotional well-being of a child."); see also In re L.V.D.B, No. 04-19-00632-CV, 2020 WL 690634 (Tex. App.-San Antonio Feb. 12, 2020, no pet.) (mem. op.) ("Mom's violence was not directed at [the child], but Mom's violent conduct was evidence of endangering [the child]."). Despite knowing father's increasingly violent history, that father abused her verbally, that father abused her physically at least twice monthly, and that at least some of this abuse occurred while the children were present, mother continued to reconcile with father and allowed the children to be supervised by father. In assessing the propriety of termination under Section 161.001(b)(1)(E), the factfinder may consider evidence that a parent has left a child in the presence or under the supervision of another parent or adult known to engage in violent abusive behavior as evidence of endangering conduct. E.g., In re C.A.G., No. 14-18-00930-CV, 2019 WL 1523114, at *8 (Tex. App.-Houston [14th Dist] Apr. 9, 2019, pet. denied) (mem. op.) (upholding termination under Section 161.001(b)(1)(E) when mother endangered child by allowing child to remain with father while knowing of father's substantial criminal history and physically violent and aggressive behavior toward mother).
Further, in view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under Section 161.001(b)(1)(E). Mother disputed that she knowingly endangered her children, but the evidence showed awareness of father's violent propensities and her continued reconciliation with father despite this knowledge. The disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under Section 161.001(b)(1)(E). Accordingly, we conclude the evidence is legally and factually sufficient to support the Section 161.001(b)(1)(E) finding with regard to mother.
C. Termination of Father's Parental Rights under Section 161.001(b)(1)(E)
Considering the record evidence in the light most favorable to the trial court's finding, we conclude the evidence is legally sufficient to support the trial court's determination that termination of father's parental rights was justified under Section 161.001(b)(1)(E) of the Family Code. Father has a long history of family violence, having previously assaulted mother on numerous occasions and other women that were considered family members. Father pled guilty to various instances of family violence, was placed on deferred adjudication, and then admitted to committing additional family violence during the period of deferred adjudication. Father assaulted mother while she was pregnant and in Gregory's presence. Father did not complete any part of his service plan and failed multiple drug tests during the pendency of this case, indicating that father was not interested in changing his conduct to reunite with his children. In re J.T.G., 121 S.W.3d at 125; In re J.I.T.P., 99 S.W.3d at 845; Sylvia M. v. Dallas Cnty. Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.-Dallas 1989, no writ) (considering "volatile and chaotic" marriage, altercation during pregnancy, and mother's repeated reconciliation with abusive spouse.); In re B.J.B., 546 S.W.2d 674, 677 (Tex. App.--Texarkana 1977, writ ref'd n.r.e.) (considering father's lack of self-control and violent propensities); see also In re L.V.D.B., No. 04-19-00632-CV, 2020 WL 690634, *2 (Tex. App.-San Antonio Feb. 12, 2020, no pet.) (mem. op.).
The plan required father to complete several tasks directed specifically to his violent behavior, including (1) completing anger management classes, (2) completing domestic violence individual and group classes, (3) participating in an eight-week parenting skills class, (4) actively participating in a psychiatric evaluation, and (5) participate in individual therapy. The plan also required father to refrain from any further criminal activity.
Father argues that he did not complete any of his services because he was under the belief that he was required to confess to harming Brandon in order to successfully complete the Department's service plan, citing In re J.I.T., No. 01-17-00988-CV, 2018 WL 3131158 (Tex. App.-Houston [1st Dist.] June 27, 2018, pet. denied) (mem. op.). In J.I.T., the mother was criminally charged with burning her son but had completed all of her services and plan except for confessing that she intentionally burned her son. Id. at *18. The department's position at trial was that mother had not taken responsibility for harming her son and, thus, despite completing all of the other requirements of reunification, the department still recommended termination. Id. at *18. Under those facts the court rejected the department's argument that mother was required to confess in order to be reunited with her children. Id. at *18. Here, father has not completed his plan or any part thereof. Father did not attend any of the parenting classes or therapy, unlike the mother in J.IT. Father also failed to point to any evidence to show that the Department required a confession as a condition of his reunification with his children. The plan admitted into evidence does not show any requirement that father confess in order to obtain reunification or to complete his plan. Although the plan requires father to attend therapy session in which he is to be honest, it imposes no mandate to confess to any conduct. Thus, J.IT. is distinguishable from this case.
"[T]he privilege [against self-incrimination] does not permit a party in a suit affecting the parent-child relationship to wholly refuse to submit to a psychological evaluation like that ordered in this case." In re Verbois, 10 S.W.3d 825, 828 (Tex. App.-Waco 2000, no pet.). "Upon submitting to such an evaluation however, a parent does not abandon his constitutional rights." Id. (citing Ex parte Butler, 522 S.W.2d 196, 197-98 (Tex. 1975)). "If an inquiry calls for an answer that might reasonably present a hazard of self-incrimination to the [parent], he may refuse to answer upon the ground of the privilege." Butler, 522 S.W.2d at 198.
In view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under Section 161.001(b)(1)(E). The major dispute with relation to father was whether he committed the abuse against Brandon. Based on the medical records, the testimony that Brandon was well and uninjured prior to being left in father's care, and father's prior history of family violence, the trial court could have concluded that father committed the abuse against Brandon. In re J.F.-G., 627 S.W.3d at 311-12 (heightened standard of review on appeal does not "dispel the deference that an appellate court must grant to the fact finder, who heard the witnesses and evaluated their credibility."). The disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under Section 161.001(b)(1)(E).
Accordingly, we conclude the evidence is legally and factually sufficient to support the section 161.001(b)(1)(E) finding with regard to father.
D. Conclusion
Having concluded that the there is legally and factually sufficient evidence to support the trial court's termination of mother and father's parental rights under Section 161.001(b)(1)(E), we overrule mother's second issue, and father's third issue. Because we conclude that there is sufficient evidence to support one of the predicate findings, we need not address the other predicate findings and do not address father's second or fourth issues. See In re F.M.E.A.F., 572 S.W.3d at 736.
III. Best Interest of the Children
Mother and father also contend that the evidence is legally and factually insufficient to support the trial court's conclusion that termination of their parental rights is in the best interest of the children.
A. General Legal Principles
There is a strong presumption that the best interest of a child is served by preserving the parent-child relationship. In re F.M.E.A.F., 572 S.W.3d at 726. In assessing whether the evidence is sufficient to prove that termination is in the best interest of a child, we may consider the non-excusive factors discussed in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parents acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. See F.M.EAF., 572 S.W.3d at 726 (citing Holley, 54 S.W.2d at 371-72). We also consider the statutory factors in Section 263.307 of the Family Code, including the child's age and vulnerabilities. See id. The best-interest analysis is child-centered and focuses on the child's well-being, safety, and development. Id. "A parent's drug use supports a finding that termination is in the best interest of the child." See In re E.R.W., 528 S.W.3d at 266.
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 § 101.007. This heightened burden of proof results in a heightened standard of review when evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.
In a legal sufficiency review, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. We disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible, but we do not disregard undisputed facts. Id.
In a factual sufficiency review, we also consider disputed and conflicting evidence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re AC, 560 S.W.3d 624, 630-31 (Tex. 2018). "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d at 266.
B. Best Interest of the Children Regarding Father
Father did not complete his plan, did not visit the children, and tested positive for marijuana and cocaine use multiple times during his plan period. See Tex. Fam. Code §§ 263.307(b)(8) (history of substance abuse); 263.307(b)(10) ("willingness and ability of child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision"); 263.307(b)(11) ("willingness and ability of the child's family to effect positive environmental and personal changes with a reasonable period of time"). Father also has a long history of family violence and did not demonstrate a willingness to complete any counseling services or effect positive personal changes. See Tex. Fam. Code § 263.307(b)(7) (history of abusive or assaultive conduct). Such unwillingness, considering father's past, could reasonably signal a present or future emotional and physical danger to the child if the child was returned to father.
The only excuse provided by father was that he believed that the Department required him to confess to harming Brandon in order to obtain reunification with his children and therefore decided not to participate or complete services in the family plan. As discussed above, we find this excuse uncompelling. Father also argues that none of the Holley factors support termination of his parental rights. While we disagree that none of the Holley factors support termination of father's parental rights, father ignores that we also must look to the statute in determining whether termination is in the children's best interest. See F.M.E.A.F., 572 S.W.3d at 726.
Looking at all the evidence in the light most favorable to the finding, a reasonable fact finder could have formed a firm belief or conviction that termination of father's parental rights was in the best interest of Brandon and Gregory. Considering the disputed and conflicting evidence, the trial court could have reasonably formed a firm conviction or belief that termination of father's parental rights was in the best interest of Brandon and Gregory. See In re F.M.E.A.F., 572 S.W.3d at 735 (sufficient evidence of best interest finding where father had history of drug and assaultive offenses, including against mother, continuation of lifestyle, failed to complete services in the family plan, was not compliant with substance abuse testing, did not visit children, and did not support them financially); In re S.R., 452 S.W.3d 351 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (appropriate to consider evidence of endangerment, history of domestic violence in front of the children, and non-compliance with service plan in determining best-interest).
We overrule father's fifth issue.
C. Best Interest of the Children Regarding Mother
Unlike father, mother successfully completed her family plan. Mother did not test positive for drug use. Despite the supervisor's testimony at trial, the Department considered mother's housing stable and that she had an extensive support network. Mother's continued relationship with father was the only reason provided for termination of mother's parental rights to her children.
1. The Child's Desires
At the time of the hearing, Gregory was two years old, and Brandon was one year old. Due to their young age, this factor is neutral. See In re A.C., 394 S.W.3d 633, 643 (Tex. App.-Houston [1st Dist.] 2012, no pet.) ("The young age of the child rendered consideration of the child's desires neutral."). There was also no evidence of any bond the children had with a foster family or whether they were well-cared for. See In re S.R., 452 S.W.3d 351, 369 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) ("When children are too young to express their desires, the fact finder may consider whether the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent."). Mother testified that she had visited the children "throughout" the case and that she would play and run around with them, eat with them, and take pictures. She described herself as close with her children and that they knew she was "mommy."
2. Present or Future Emotional and Physical Needs
The supervisor testified that Brandon presently had medical needs, still had a g-tube for feeding and required constant care. The supervisor believed that both Brandon and Gregory would need emotional help now and in the future because of their exposure to physical and emotional abuse but did not elaborate as to the basis of this belief or whether she or anyone else had spoken with the children or assessed their emotional needs.
3. Any Present or Future Emotional and Physical Danger
The supervisor was concerned that because of mother's continued relationship with father, mother would not be protective of her children. The supervisor further believed that returning the children to mother would put the children in danger because of her relationship with father, despite there being no evidence that father had visited mother's home, where the children would reside if returned to mother.
4. Parental Abilities of Individuals Seeking Custody
The supervisor testified that mother had completed her family plan and services. The family evaluation completed by the Department in December 2017 indicated that mother had mid-range scores on her parenting evaluation, which represents "the parenting attitudes of the general population." The family evaluation identified mother's strengths as being "stable employment and housing," her "love and commitment" to her children, no history of "significant drug use," and a reported presence of "an extensive support system." Mother also testified that she had the support of her family, including her mother, step-father, brother, sister, church "family," and work "family."
5. Plans for the Children
The supervisor admitted that there was not a permanent placement for the children but that they had completed a home study of a maternal cousin. The supervisor testified that if the children's ad-litem approved the placement, then the goal would be for the maternal cousin to adopt the children. The supervisor did not testify about the caregiver, the nature of the environment the caregiver would provide, whether the caregiver would be able to meet the emotional and physical needs of the children, or whether permanent adoption was something that the caregiver wanted. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.-San Antonio 2013, no pet.) (concluding that the evidence was legally insufficient that termination was in the children's best interest because "[o]ther than the identity of the caregivers, no information about the caregivers or the nature of the environment these caregivers would provide for the children was offered. On this record, we cannot conclude the evidence rises to the level of 'clear and convincing' . . . .").
6. Stability of the Home or Proposed Placement
The supervisor testified that she did not consider mother's living arrangements, residing with her grandmother, as safe or stable but did not elaborate as to the reasons for her conclusions. However, conclusory testimony, even if uncontradicted, does not amount to more than a scintilla of evidence. Id. Conversely, the family evaluation indicated that mother's living arrangement was "stable" and that she had an "extensive support system" and stable employment. The Department did not elicit any evidence regarding the stability of the proposed placement in the maternal cousin's home.
7. Acts or Omissions Which May Indicate the Existing Parent-Child Relationship Is Improper
The only act identified by the supervisor was that mother was maintaining a relationship with father despite his prior acts of domestic violence towards mother, Brandon, and other family members. The department did not present any other evidence to indicate that the existing parent-child relationship between mother and children is improper.
8. Any Excuse for the Parent's Acts or Omissions
Mother testified that she was not in a relationship with father, that she ended the relationship, and that she helped the police to locate father in relation to father's criminal charges stemming from Brandon's injuries. Mother also testified that she did not think that father would hurt the children and had never raised his voice or lost his temper with the children before the incident with Brandon. She also testified that she had found the courage to fight back and was no longer afraid of father.
There was no evidence presented regarding any programs available to assist individuals seeking custody to promote the children's best interest.
9. Weighing the Holley and Statutory Factors
Considering and weighing the Holley and statutory factors and looking at all the evidence in the light most favorable to the finding, a reasonable fact finder could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). With regard to mother and father's current relationship, the fact finder was entitled to weigh father's testimony as credible and mother's testimony as not credible. In doing so, the fact finder would conclude that mother's relationship, due to father's violent history and failure to address or correct such behavior, would put the children in physical and emotional danger and weigh that factor against mother. Coupled with the young ages and special vulnerabilities of these children, see Tex. Fam. Code § 263.307(b)(1), the evidence was legally sufficient to support the trial court's best interest determination.
However, considering the disputed and conflicting evidence and given the presumption that children should remain with their parents and the high evidentiary standard the statute requires the Department to meet, a reasonable fact finder could not have found factually sufficient evidence exists to form a firm belief or conviction that termination in this case was in the children's best interest. "Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child, but the presence of scant evidence relevant to each Holley factor will not support such a finding." Yonko v. Dep't of Family & Protective Services, 196 S.W.3d 236, 243 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)) (concluding evidence was legally sufficient to support trial court's best interest determination but factually insufficient).
The Department presented no evidence of some factors and scant evidence of other factors in presenting its case against mother. Here, mother disputed that she maintained a relationship with father. It was undisputed that mother cooperated with police to locate father, completed all of her services, had shown her willingness and ability to parent the children, obtained stable housing, had stable employment, was bonded to her children, had a support network, visited her children throughout the case, and had no drug or substance issues. There was no evidence that mother could not provide for her children's physical needs or that mother had failed previously in providing for the children's physical needs.
We sustain mother's fourth issue.
D. Conclusion
Having concluded there is legally and factually sufficient evidence to support the trial court's determination that termination of father's parental rights is in the best interest of the children, we overrule father's fifth issue. Having concluded there is legally sufficient evidence to support the trial court's finding that termination of mother's parental rights is in the best interest of the children but factually insufficient evidence that termination of mother's rights is in the best interest of the children, we sustain mother's fourth issue in part.
IV. Sole Managing Conservator
Mother and father next argue that the evidence is legally and factually insufficient to support the appointment of the Department as sole managing conservator. Father argues that he was precluded from services if he wanted to maintain his Fifth Amendment right of silence but that mother had completed her services. Father also argues that there is no evidence that either parent injured the children. Mother argues that there was no evidence that mother could not protect the children or that mother ever knowingly put the children in the care of someone who would harm them. Mother also argues that there is no evidence against her of abuse or neglect.
A. General Legal Principles
A parent shall be named a child's managing conservator unless, as relevant here, the court finds that such appointment would significantly impair the child's physical health or emotional development. See Tex. Fam. Code § 153.131(a). The trial court made this finding, and it also found appointing the Department as managing conservator was in the children's best interest. This finding is governed by a preponderance of the evidence standard. Tex. Fam. Code § 105.005; see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). "Conservatorship determinations . . . are subject to review only for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable." In re J.A.J., 243 S.W.3d at 616. Because a different standard applies to conservatorship determinations, "evidentiary review that results in reversal of a termination order may not yield the same result for a conservatorship appointment." Id.; see also In re J.J.G., 540 S.W.3d 44 (Tex. App.-Houston [1st Dist] pet. denied) (upholding appointment of the Department as sole managing conservator of children where trial court declined to terminate parental rights based on the Department's failure to establish grounds for termination).
A trial court abuses its discretion when it acts without reference to any guiding rules or principles. In re J.J.G., 540 S.W.3d at 55. It is not an abuse of discretion for the trial court to base its decisions on conflicting evidence, so long as there is some evidence of substantive and probative character to support the trial court's decision. Id. Under the abuse-of-discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are merely relevant factors in assessing whether a trial court abused its discretion. In re S.T., 508 S.W.3d 482, 489 (Tex. App.-Fort Worth 2015, no pet.). An abuse of discretion does not occur wen the trial court bases its decision on conflicting evidence and some evidence of substantive and probative character supports its decision. Id. at 490.
Section 151.131 is subject to Section 151.004 of the Family Code which provides that:
It is a rebuttable presumption that the appointment of a parent as the sole managing conservator . . . is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present . . . physical or sexual abuse by that parent directed against the other parent . . . .Tex. Fam. Code 151.004(b). "Under the plain language of sections 151.131(a) and 153.004(b), the parental presumption is replaced by the opposite presumption- i.e., that appointment of a neglectful or abusive parent as possessory conservator is not in the child's best interest" upon a showing that the parent has a history or pattern of past or present physical abuse against the other parent. See In re J.J. G., 540 S.W.3d at 56. "To rebut that presumption, such a parent must produce evidence that her appointment will be in the child's best interest." Id.
In considering a child's best interest in the context of a conservatorship determination, we consider the same factors as discussed above and set forth in Holley. In re A.M.T., 592 S.W.3d 974, 976-77 (Tex. App.-San Antonio 2019, pet. denied).
B. Analysis
As detailed above, there is ample evidence in the record from which the trial court could have based its decision that appointing father would not be in the children's best interest and that credible evidence was presented of a history or pattern of past physical abuse by that parent directed against the other parent. Father did not present any evidence to rebut the presumption in section 151.004(b). See In re J.J.G., 540 S.W.3d at 56.
As detailed above, there was legally sufficient evidence that termination of mother's parental rights was in the best interest of the children based on the Holley factors, but factually insufficient evidence. There was also legally and factually sufficient evidence to support the trial court's conclusion under Section 161.001(b)(1)(E) as to mother. Given the differing standards of proof and review between terminating parental rights and appointing a managing conservator, we cannot conclude that the trial court abused its discretion in naming the Department as sole managing conservator. See In re J.A.J., 243 S.W.3d at 616.
We overrule father's seventh issue and mother's sixth issue.
V. Conclusion
We conclude that there is legally and factually sufficient evidence under Section 161.001(b)(1)(E) as to both mother and father as a basis for termination of their parental rights. We conclude that there is legally and factually sufficient evidence that termination is in the best interest of the children as to father. We concluded that there is legally sufficient evidence that termination is in the best interest of the children as to mother, however, there is factually insufficient evidence to support the trial court's finding that termination is in the best interest of the children as to mother. We further conclude that the trial court's appointment of the Department as the sole managing conservator of the children was not an abuse of discretion. We do not address mother's complaints regarding the ineffective assistance of her trial counsel because it would not afford her greater relief. See Tex. R. App. P. 47.1; see also In re M.S., 115 S.W.3d 534, 550 (Tex. 2003) (appropriate for appellate court to remand for new trial where trial counsel was ineffective).
We affirm the trial court's final decree terminating father's parental rights to the children, we affirm the trial court's appointment of the Department as the sole managing conservator of the children, we reverse the trial court's final decree terminating mother's parental rights, and we remand for a new trial.