                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-183-CV


IN THE INTEREST OF J.F., J.J.,
AND J.J., CHILDREN

                                    ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                 I. Introduction

      Appellant Brandy F. appeals the trial court’s judgment terminating her

parental rights to her three children—John, Julie, and Jennifer (collectively

“children”).2   In four issues, Brandy argues that the evidence is legally and

factually insufficient to support the trial court’s findings. We affirm.



      1
          … See Tex. R. App. P. 47.4.
      2
      … We use aliases for the names of the children: J.F. will be referred to
as John, the older J.J. as Julie, and the younger J.J. as Jennifer. See Tex. R.
App. P. 9.8(b)(2).
                              II. Procedural History

      In October 2005, the Texas Department of Protective and Regulatory

Services (“the Department”) filed a petition to terminate Brandy’s parental

rights to John, Julie, and Jennifer. After a bench trial, the trial court found that

the Department had failed to comply with section 262.114 of the Texas Family

Code and denied the Department’s petition. On appeal, we held that the trial

court’s “death penalty” sanction as to the termination of Brandy’s parental

rights was excessive under the circumstances, and we reversed and remanded

the cause for further proceedings. In re J.F., No. 02-07-00007-CV, 2007 WL

2963690, at *8 (Tex. App.—Fort Worth Oct. 11, 2007, pet. denied) (mem.

op.). On remand, the trial court, basing its decision on the already existing trial

record, signed an order terminating Brandy’s parental rights to her children.3

This appeal followed.




      3
       … We have been advised that the audiotape recording of the proceedings
held below after remand is blank; therefore, there is no additional reporter’s
record. No party complains of this omission. Further, the order of termination
and the parties provide that the trial court considered the original trial record in
making its decision, and the parties refer to the original reporter’s record in their
briefing. Therefore, in the interest of justice, we take judicial notice of the
reporter’s record in the prior appeal of this cause and likewise refer to it in our
opinion.

                                         2
                           III. Evidentiary Sufficiency

      In her first two issues, Brandy argues that the evidence is factually

insufficient to support the trial court’s endangerment findings. See Tex. Fam.

Code Ann. § 161.001(1)(D), (E) (Vernon 2008). In her third and fourth issues,

Brandy argues that the evidence is legally and factually insufficient to support

the trial court’s best interest finding. See id. § 161.001(2).

A. Standard of Review

      A   parent’s   rights   to   “the   companionship,    care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”        Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

State seeks not just to limit parental rights but to erase them permanently—to

divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. Tex.

Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685 S.W.2d 18,

                                          3
20 (Tex. 1985).     We strictly scrutinize termination proceedings and strictly

construe involuntary termination statutes in favor of the parent. Holick, 685

S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth

2008, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005).            Both elements must be established;

termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear

and convincing if it “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.

§ 101.007 (Vernon 2002). Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243




                                         4
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination

were proven.     In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).       We must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the factfinder resolved any disputed

facts in favor of its finding if a reasonable factfinder could have done so. Id.

We must also disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

contrary to the finding. Id. That is, we must consider evidence favorable to

termination if a reasonable factfinder could and disregard contrary evidence

unless a reasonable factfinder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as

they are not unreasonable. Id. at 573.

                                       5
      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that the parent violated the endangerment grounds of

section 161.001(1) and that the termination of the parent-child relationship

would be in the best interest of the child. C.H., 89 S.W.3d at 28. 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 in the truth of its finding,

then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

B. Evidence Presented at Trial

      In October 2005, the Department removed Brandy’s children from her

care and placed them into foster care after having received numerous referrals

alleging neglect, physical abuse, and sexual abuse of the children.

      1. Sexual Abuse

      The evidence indicated that Brandy’s father, “Grandfather Danny,” had

sexually abused both Julie and Jennifer. During a therapy session with Laura

Greuner, a therapist who specializes in working with children who have been

sexually abused and who suffer from post-traumatic stress disorders, Julie

                                        6
confided that she had been sexually abused by Grandfather Danny. She told

Gruener that her grandfather had touched her private area four times, and then

she talked about how he would pull her pants down and touch her. Jennifer,

in a separate counseling session, told Gruener that Grandfather Danny would

have both her and her sister “get naked” and then he would look at them and

touch them. Gruener testified, “[Jennifer] said to me that [Grandfather] Danny

touched us here and she touched herself on her private area over her clothes

to show me what she was talking about.”

      Julie confided to Virginia Caldwell, a registered nurse at Cook Children’s

Hospital, that her Grandfather Danny had put a “pink stick” in her genital area

and in her “butt.”   She further stated that her clothes were off when this

happened and that it hurt. Dr. Parnell Ryan, who conducted a psychological

evaluation of Julie, described Julie as a little girl struggling with sadness. Dr.

Ryan testified that Julie had advised him that her grandfather had fondled her

vagina.

      During trial, Brandy testified that her father, Grandfather Danny, started

making sexual advances towards her when she was thirteen years old. She

admitted this to nurse Caldwell while the nurse gathered a social history during

Julie’s examination. Brandy also testified that she had believed Julie when

Julie made her initial outcry against Grandfather Danny in March 2004.

                                        7
However, despite her own childhood history with Grandfather Danny and her

knowledge that he had sexually abused Julie in March 2004, Brandy sent the

children to live with him in September 2004.

      2. The Safety Plan

      A Department worker, Christiana Smith, began working with the family

in December 2004. Brandy and the Department agreed upon a safety plan that

included a prohibition of any contact between the children and Grandfather

Danny. Brandy also agreed to individual therapy for herself, individual therapy

for the children, parenting classes, random drug tests to insure that she was

drug free, and participation in a drug assessment if any drug tests were

positive.

      Brandy violated the safety plan by testing positive for marijuana and pain

killer medication in April 2005, and the Department removed the children from

her care and placed them with Brandy’s mother, Robin F.              Robin had

instructions to supervise all contact between the children and Brandy.

      Smith continued to provide services to Brandy, including bus passes for

transportation and even personally driving Brandy to some of the services.

However, Brandy was eventually dropped from her drug abuse classes for

noncompliance, the children were not taken to counseling (even though the

Department paid for this service and agreed to assist in transportation), and a

                                       8
Department worker caught Brandy having unsupervised contact with the

children—all violations of the safety plan.

      In addition, Brandy allowed Grandfather Danny to be in the car with the

children as they traveled to a counseling session with Gruener. This concerned

Gruener because it was a safety plan violation and because the children were

being taken to therapy sessions where they were likely to talk about the sexual

abuse perpetrated on them by the same man who would be driving them home

following the therapy session. Finally, the Department discovered that Brandy

had permitted Grandfather Danny to have contact with the children on another

occasion at a Chuck E. Cheese restaurant. Brandy testified to this “Chuck E.

Cheese safety plan violation” and admitted that she was actually present when

it occurred.

      3. Domestic Violence

      Once in foster care, the children told of other instances of exposure to

abuse and neglect, including regularly witnessing domestic violence between

Brandy and their father. Brandy admitted at trial that she and the children’s

father had exposed the children to violent confrontations. She testified about

one instance in which she and the children’s father had fought and hit each

other while sitting in the car with John and Julie. Brandy described the “assault

in the vehicle” to Randee Kaitcer, the children’s court appointed special

                                       9
advocate (“CASA”), telling Kaitcer that the children’s father had punched her

in the mouth and made her bleed. Kaitcer confirmed that Julie had witnessed

this bloody assault. Brandy testified to further instances in which she and the

children’s father would yell and scream, and he would grab her and push her

up against something to shut her up. Brandy admitted that John was affected

by the violence, and that he would yell at his father to stop hitting his mother.

      As a result of witnessing this violence, John confided to Gruener and Dr.

Ryan that he was angry and that when he attempted to intervene and protect

his mother, he would “get hit.”     Julie, also affected by the violence, told

Gruener that she had seen her father hit her mother, that it made her mother

bleed, and that she was “scared about that.” She had also confided to Dr.

Ryan that she had witnessed her father hitting her mother.

      In addition to witnessing domestic violence, Brandy also exposed the

children to sexual acts between her and the children’s father.         Brandy’s

explanation to allowing the children to watch such acts was that, since all of

the family lived in one room, she and the children’s father proceeded to do

what “adults do.” John told Dr. Ryan that he had watched his parents having

sex and that he had attempted to perform such acts on his sister.           Julie

confirmed this by telling Dr. Ryan that her brother John would lay on top of her,




                                       10
slobber on her neck, and rub himself against her. Julie referred to this behavior

as “sex” and said that she had watched her mother and father have sex.

      4. Suicide Attempt

      In May 2005, Brandy attempted to commit suicide by overdosing on

sleeping pills. She testified that she did not want to “deal with anything at the

time” and that she thought suicide “would be a quick way out.”            Brandy

received treatment for her depression and was prescribed two types of

medications; however, she quit taking the medications because she did not like

the way they made her feel.4

      5. Overall Compliance

      By the time this case went to trial, Brandy had failed to complete her drug

classes (having been discharged three times for noncompliance), had not taken

GED classes, had not attended nonoffender sexual abuse classes, had not

attended her therapy sessions for domestic violence, and was virtually

noncompliant with her individual therapy.

C. Endangerment under Subsections (D) and (E)

      In her first and second points, Brandy argues that the evidence is factually

insufficient to establish that she endangered her children. Endangerment is




      4
          … At the time of trial, Brandy had begun taking her medications again.

                                        11
defined as exposing to loss or injury, to jeopardize. In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.). Under subsection (D), it is

necessary to examine evidence related to the environment of the child to

determine if the environment was the source of endangerment to the child’s

physical or emotional well-being.    In re D.T., 34 S.W.3d 625, 632 (Tex.

App.—Fort Worth 2000, pet. denied). To support a finding of endangerment,

the parent’s conduct does not necessarily have to be directed at the child, nor

is the child required to suffer injury. Boyd, 727 S.W.2d at 533. Rather, a child

is endangered when the environment or the parent’s course of conduct creates

a potential for danger that the parent is aware of but disregards. In re S.M.L.,

171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Inappropriate, abusive, or unlawful conduct by persons who live in the child’s

home or with whom the child is compelled to associate on a regular basis in his

home is a part of the “conditions or surroundings” of the child’s home under

section 161.001(1)(D).     In re J.L.W., No. 02-08-00179-CV, 2008 WL

4937970, at *6 (Tex. App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.);

see also In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no

writ) (stating that “environment” refers not only to the acceptability of living

conditions, but also to the parent’s conduct in the home). A parent need not




                                      12
know for certain that the child is in an endangering environment; awareness of

such a potential is sufficient. See S.M.L., 171 S.W.3d at 477.

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

the endangerment of the child’s physical or emotional well-being was the direct

result of the parent’s conduct, including acts, omissions, and failures to act.

J.T.G., 121 S.W.3d at 125. Termination under subsection (E) must be based

on more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required. Id.; D.T., 34 S.W.3d at 634.

      A parent’s mental state may be considered in determining whether a child

is endangered if that mental state allows the parent to engage in conduct that

jeopardizes the child’s physical or emotional well-being. See also In re C.D.,

664 S.W.2d 851, 853 (Tex. App.— Fort Worth 1984, no writ); In re J.I.T.P.,

99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). This

includes a parent’s attempts to commit suicide. See In re A.M.C., 2 S.W.3d

707, 716 (Tex. App.—Waco 1999, no pet.) (holding that mother endangered

children by her suicidal thoughts, suicide attempts, and neglect).

      Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we may conduct a consolidated review. In re M.C.T., 250 S.W.3d

161, 169 (Tex. App.—Fort Worth 2008, no pet.); see also In re M.R., 243

S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (holding that there

                                      13
was legally and factually sufficient evidence of both endangerment grounds

when, among other things, the evidence showed that the mother exposed her

children to domestic violence and refused to participate in her CPS service

plan).

         The record demonstrates that Brandy was aware that her father,

Grandfather Danny, had sexually assaulted at least one of her children.

Notwithstanding this knowledge, Brandy sent the children to live with

Grandfather Danny and then continued to allow him access to the children even

after a safety plan had been implemented prohibiting contact between him and

the children. The record also demonstrates that there were domestic violence

issues between Brandy and the children’s father, which the children witnessed

on a regular basis.     Brandy herself testified that the violent fights between

herself and the children’s father affected John—there was even evidence that

this included physical abuse. The record also revealed that the children were

beginning to exhibit disturbing behavior as a result of their parents’ having sex

in the children’s presence. Finally, Brandy admitted that she had attempted to

commit suicide and had stopped taking her prescribed depression medications.

         Having carefully reviewed the entire record, giving due deference to the

factfinder, we conclude that the trial court could have reasonably formed a firm

belief or conviction that Brandy knowingly placed John, Julie, and Jennifer in

                                        14
conditions, or engaged in conduct, that endangered the children’s physical or

emotional well-being and also knowingly placed the children with a person

whose conduct endangered the children’s physical or emotional well-being. See

Tex. Fam. Code Ann. § 161.001(1)(D), (E); M.R., 243 S.W.3d at 819.

Therefore, we hold that the evidence is factually sufficient to support the trial

court’s endangerment findings. Accordingly, we overrule Brandy’s first and

second issues.

D. Best Interest Finding

      In her third and fourth issues, Brandy argues that the evidence is legally

and factually insufficient to support the trial court’s finding that termination of

her parental rights was in the children’s best interest.

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt

and permanent placement of the child in a safe environment is also presumed

to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon

2002). The following nonexclusive factors should be considered in evaluating

the parent’s willingness and ability to provide the child with a safe environment:

      (1) the child’s age and physical and mental vulnerabilities;

      (2) the magnitude, frequency, and circumstances of the harm to
      the child;



                                        15
      (3) whether the child has been the victim of repeated harm after
      the initial report and intervention by the department or other
      agency;

      (4) the results of psychiatric, psychological, or developmental
      evaluations of the child, the child’s parents, other family members,
      or others who have access to the child’s home;

      (5) whether there is a history of abusive or assaultive conduct by
      the child’s family or others who have access to the child’s home;

      (6) whether there is a history of substance abuse by the child’s
      family or others who have access to the child’s home;

      (7) the willingness and ability of the child’s family to seek out,
      accept, and complete counseling services and to cooperate with
      and facilitate an appropriate agency’s close supervision;

      (8) whether the child’s family demonstrates adequate parenting
      skills, including providing the child and other children under the
      family’s care with:

            (A) care, nurturance, and appropriate discipline
            consistent with the child’s physical and psychological
            development;

            (B) guidance and supervision consistent with the
            child’s safety;

            (C) a safe physical home environment; and

            (D) protection from repeated exposure to violence even
            though the violence may not be directed at the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

      Other, nonexclusive factors that the trier of fact in a termination case

may use in determining the best interest of the child include:

                                      16
      (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 the 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).

      These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, 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. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

                                       17
      Regarding the first factor, the children were too young to testify at trial;

however, Dr. Ildiko Balla, one of the children’s therapist, presented evidence

that the children love their mother and have a close bond with her.

Nevertheless, Gruener and Dr. Ryan also presented evidence that while in

Brandy’s care, the children were exposed to sexual abuse, domestic violence,

and neglect.

      Regarding the second factor—the children’s present and future physical

and emotional needs—the record revealed that Brandy neglected the children

on more than one occasion, even going so far as failing to take the children to

their required counseling sessions.

      The endangerment discussion above addressed the third, fourth, and

eighth factors—the present and future physical and emotional dangers to the

children, as well as Brandy’s parenting abilities, or lack thereof, and her acts

and omissions. See In re D.S., 176 S.W.3d 873, 879 (Tex. App.—Fort Worth

2005, no pet.) (holding that evidence of a parent’s unstable lifestyle, including

drug use and inability to provide a stable home, can support a factfinder’s

conclusion that termination is in the child’s best interest), superseded by statute

on other grounds as recognized in In re D.A.R., 201 S.W.3d 229, 230–31 (Tex.

App.—Fort Worth 2006, no pet.).




                                        18
      Concerning the fifth factor—the programs available to assist these

individuals to promote the best interest of the child— Brandy failed to complete

her drug classes (having been discharged three times for noncompliance), did

not attend nonoffender sexual abuse classes, did not attend her therapy

sessions for domestic violence, and was virtually noncompliant with her

individual therapy.

      Regarding the sixth factor, Brandy did not list her plans for the children.

Mary Jokisch, the Departmental worker assigned to Brandy after the

Department removed the children, testified that termination of Brandy’s parental

rights would be in the children’s best interests due to their therapeutic needs,

which Brandy was not meeting. Jokisch further testified that the Department

had families available to adopt the children.

      The seventh factor—the stability of the proposed placement—Jokisch

testified that termination followed by adoption would give the children the

stability and structured environment that they needed.

      Finally, concerning the ninth factor—any excuse for the parent’s acts or

omissions—Brandy testified that she did not complete her services because she

simply gave up. She further testified that it did not dawn on her, until after the

fact, that moving the children in with Grandfather Danny would be emotionally

damaging for them.

                                       19
      Giving due consideration to the evidence that the factfinder could have

reasonably found to be clear and convincing, we hold that a reasonable trier of

fact could have formed a firm belief or conviction that the termination of

Brandy’s parental rights would be in the children’s best interest. See In re

J.L.W., No. 02-08-00179-CV, 2008 WL 4937970, at *9–10 (Tex. App.—Fort

Worth Nov. 20, 2008, no pet.) (mem. op.) (holding that evidence was legally

and factually sufficient to support trial court’s best interest finding when

evidence revealed that returning child to mother would risk child’s emotional

and physical well-being because of couple’s past history of domestic abuse and

because of mother’s inability to care for any of her four children). Therefore,

we hold that the evidence was legally sufficient to support the trial court’s best

interest finding. We also hold, based on the entire record, that the evidence

was factually sufficient to support the trial court’s best interest finding.

Accordingly, we overrule Brandy’s third and fourth issues.

                                IV. Conclusion

      Having overruled all of Brandy’s issues, we affirm the trial court’s

judgment terminating Brandy’s parental rights to her three children.


                                            BOB MCCOY
                                            JUSTICE


PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DELIVERED: March 26, 2009

                                       20
