

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 
 



 
 
R.F., 
 
                                   
  Appellant,
 
v.
 
TEXAS DEPARTMENT OF FAMILY
AND PROTECTIVE SERVICES,
 
                                    Appellee.
  
 


 
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                  No. 08-12-00173-CV
 
                         Appeal from
 
65th District Court
 
of El Paso County,
  Texas
 
(TC # 2009CM6364)




 
 
 
 
 
 
 
 
 
 
 


 


 



O
P I N I O N
 
 
            Appellant
brings an accelerated appeal from the trial court’s order terminating his
parental rights to six minor children. 
In three issues, he complains of evidentiary error and challenges the
sufficiency of the evidence.  For the
reasons that follow, we affirm. 
FACTUAL SUMMARY
            In
September 2009, TDFPS removed six children from the care of their mother, V.M.,
and Appellant.[1]  The Department was granted temporary
conservatorship of the children.  In
October 2009, it appointed Priscilla Thornton as the case worker for all of the
children.  According to Thornton, the
children were removed due to the parents’ continued drug use.  The children were also residing in a small,
unsanitary home “that was not able to meet their needs.”  They were not eating and Child E tested
positive for cocaine.
            Thornton
worked with Appellant and V.M. for approximately eighteen months, and in
January 2011, they reached a settlement agreement.  The Agreement provided that TDFPS would
become the permanent managing conservator of the children, and the parents
would be appointed as possessory conservators. 
The goal was family reunification. 
Thornton testified that the Agreement was designed to allow V.M. more
time to “get her home in order.”  The
Department felt that if the mother had more time, she could be successful and
the children could be returned to her. 
At the time the Agreement was approved by the court, V.M. had a stable
home and was looking for employment. 
Thornton prepared a service plan for the parents.  Appellant was required to:  (1) have weekly supervised visits with his
sons; (2) provide financial support to V.M.; (3) obtain employment; (4) keep in
communication with  Thornton; and (5)
attend the children’s “educational appoint- -- needs.”  In February 2011, the trial court appointed
TDFPS as permanent conservator of the children and V.M. and Appellant as
possessory conservators.  
            While
visiting his sons in June 2011, Appellant was arrested on charges of indecency
with a child for engaging in sexual contact with one of his daughters.[2]  On September 29, TDFPS filed a petition for
modification and termination of Appellant’s and V.M.’s parental rights.  At the time, Appellant was still incarcerated
and V.M. had not had contact with the children since July.  On November 1, Appellant pled guilty to the
indecency charges.  The trial court
accepted his plea and placed him on deferred adjudication community supervision
for a period of ten years.  Once he was
out of jail, Appellant contacted Thornton. 
After his release, he was only permitted to visit with his oldest son,
Child A.  Thornton testified that she
allowed monthly, supervised visits because the child asked to see his
father.  
            On
April 24, 2012, TDFPS filed a first amended petition which provided, in
relevant part: 
8.  Termination of [Appellant’s]
Parental Rights
 
If reunification with the father
cannot be achieved, the Court should terminate the parent-child relationship
between [Appellant] and the child [A, B, C, D, E, and F] under Chapter 161,
Texas Family Code, because termination of the parent-child relationship is in
the child’s best interest and [Appellant] has committed one or more of the
following acts or omissions: 
 
8.1.  knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child;
 
8.2.  engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child;
 
8.3.  failed to support the
child in accordance with the father’s ability during a period of one year
ending within six months of the date of the filing of the petition;
 
8.4.  been convicted or has
been placed on community supervision, including deferred adjudication community
supervision, for being criminally responsible for the death or serious injury
of a child under the following sections of the Penal Code or adjudicated under
Title 3 for conduct that caused the death or serious injury of a child and that
would constitute a violation of one of the following Penal Code sections:
 
            §
21.11 (indecency with a child)
 
8.5.  constructively
abandoned the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services or an
authorized agency for not less than six months and: (1) the Department or
authorized agency has made reasonable efforts to return the child to the
father; (2) the father has not regularly visited or maintained significant
contact with the child; and (3) the father has demonstrated an inability to
provide the child with a safe environment; 
 
8.6.  failed to comply with
the provisions of a court order that specifically established the actions
necessary for the father to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the child’s removal
from the parent under Chapter 262 for the abuse or neglect of the child; 
 
            Hearings
were conducted on April 30 and May 4, 2012. 
Appellant and V.M. testified at the hearing, as well as Thornton and
Irene Burgos-Cadena, the children’s therapist. 
The following exhibits were admitted into evidence:  (1) the indictment charging Appellant with
indecency with Child C; (2) the November 7, 2011 judgment finding Appellant
guilty and ordering he be placed on deferred adjudication community supervision
for ten years; (3) Cadena’s records from her therapy sessions with the
children; (4) the trial court’s order approving the January 2011 Settlement
Agreement; and (5) the February 2011 final order.  On May 15, 2012, the trial court signed an
order terminating Appellant’s parental rights pursuant to Section
161.001(1)(L)(iv) of the Texas Family Code and found termination to be in the
best interest of the children.
BURDEN OF PROOF
            The
natural right of a parent to the care, custody, and control of their children,
is one of constitutional magnitude.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985); see also Santosky v. Kramer,
455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982)(acknowledging
that a parent’s rights to “the companionship, care, custody, and management” of
their children are constitutional interests, “far more precious than any
property right.”)  Not only is a parent’s
interest in maintaining custody of and raising his or her children “paramount;”
it is quite possibly the oldest fundamental liberty recognized by our
Courts.  See In the Interest of M.S.,
E.S., D.S., S.S., and N.S., 115
S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a
parent’s interest in maintaining custody of and raising his or her child is
paramount”); Troxel v. Granville, 530
U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)(in discussing the
constitutional stature of parental rights, the United State Supreme Court said,
“the interest of parents in the care, custody, and control of their children--is
perhaps the oldest of the fundamental liberty interests recognized by this
Court.”); see also In re M.S., 115
S.W.3d at 549 (“Termination of parental rights is traumatic, permanent, and
irrevocable.”).
            Although
parental rights are of constitutional magnitude, they are not absolute.  In the
Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002)(“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.”).  A parent’s rights may be involuntarily
terminated through proceedings brought under Section 161.001 of the Texas
Family Code.  See Tex.Fam.Code Ann.
§ 161.001 (West 2008).  Under this provision, the petitioner must
establish one or more of the acts or omissions enumerated under subsection (1)
as grounds for termination and must also prove that termination is in the best
interest of the child.  See id. 
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.  Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987).
            Because
of the elevated status of parental rights, and the severity and permanency of
termination, the quantum of proof required in a termination proceeding is
elevated from the preponderance of the evidence to clear and convincing
evidence.[3]  Santosky,
455 U.S. at 747, 102 S.Ct. at 1391; accord
Holick, 685 S.W.2d at 20-21.; see
In
re M.S., 115 S.W.3d at 547
and In the Interest of D.S.P. and H.R.P.,
210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.)(cases recognizing
that involuntary termination of parental rights is a drastic remedy which
divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit
from the parent.); see also In the
Interest of B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003)(noting that because
of the severity and permanency of termination, due process requires the party
seeking to terminate parental rights prove the necessary elements by the
heightened burden of proof of clear and convincing evidence.).  
            “Clear
and convincing evidence” means the measure or degree of proof that “will
produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.”  Tex.Fam.Code
Ann. § 101.007 (West 2008); see In
the Interest of J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex.
2007)(contrasting the standards applied in termination proceedings and the
standards applied in modification proceedings); In the Interest of C.D., No. 02-10-00070-CV, 2011 WL 1743688, at
*4 (Tex.App.--Fort Worth May 5, 2011, no pet.). 
This intermediate standard falls between the preponderance of evidence
standard of ordinary civil proceedings and the reasonable doubt standard of
criminal proceedings.  State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979); In re D.T., 34 S.W.3d
625, 630 (Tex.App.--Fort Worth 2000, pet. denied)(op. on reh’g). Although the
proof must be more than merely the greater weight of the credible evidence,
there is no requirement that the evidence be unequivocal or undisputed.  Addington,
588 S.W.2d at 570.  We strictly
scrutinize termination proceedings, and construe any statutes involving
involuntary termination in favor of the parent. 
Holick, 685 S.W.2d at 20-21; In the Interest of A.V., 849 S.W.2d 393,
400 (Tex.App.--Fort Worth 1993, no writ).
STANDARDS OF REVIEW
 
            When
reviewing legal sufficiency or “no evidence” challenges to termination
findings, we consider all of the evidence in the light most favorable to the trial
court’s finding, “to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.”  In the
Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d at 266.  We give deference to the fact finder’s
conclusions, indulge every reasonable inference from the evidence in favor of
that finding, and presume the fact finder resolved any disputed facts in favor
of its findings, so long as a reasonable fact finder could do so.  Id.;
In re J.F.C., 96 S.W.3d at 266.  We disregard any evidence that a reasonable
fact finder could have disbelieved, or found to have been incredible, but we do
not disregard undisputed facts.  In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266.  A legal sufficiency or no evidence point will
only be sustained when the record discloses one of the following: (1) a
complete absence of evidence of a vital fact; (2) the court is barred by rules
of law or evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla
of evidence; or (4) the evidence establishes conclusively the opposite of a
vital fact.  See Swinney v. Mosher, 830 S.W.2d 187, 194 (Tex.App.--Fort Worth
1992, writ denied).
            In
reviewing the evidence for factual sufficiency, we must give due deference to
the fact finder’s findings, and we cannot supplement such judgment with our
own.  In
the Interest of H.R.M., 209 S.W.3d 105, 108 (Tex. 2006), citing In re C.H., 89 S.W.3d 17, 27
(Tex. 2002) and Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).  “If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is factually
insufficient.”  In re H.R.M., 209 S.W.3d at 108; quoting In re J.F.C., 96 S.W.3d at 266 (internal quotations omitted).  Moreover, in applying this standard, our
review “must not be so rigorous that the only factfindings that could withstand
review are those established beyond a reasonable doubt.”  In re
C.H., 89 S.W.3d at 26; citing
Santosky, 455 U.S. at 767-69, 102 S.Ct. 1388; see also In re H.R.M., 209 S.W.3d at 108.
Exclusion
of Evidence 
            In
Issue One, Appellant complains that the court erred by refusing to allow him to
testify that, despite his guilty plea, he did not commit the offense of
indecency with a child.  During Appellant’s
initial testimony, his attorney attempted to ask him why he pled guilty to the
sexual offense.  The State objected on
grounds of collateral estoppel.  The
trial court sustained the objection.
            After
Appellant was excused, the State called the children’s therapist and the case
worker to testify.  Cadena testified that
both of Appellant’s daughters reported that Appellant had sexually assaulted
them.  She did not testify to the
details.  The State then rested its
case.  Appellant was re-called to the
stand and his attorney again tried to elicit testimony as to why he pled
guilty.  The State objected, arguing
Appellant could not collaterally attack his prior conviction.  Appellant’s counsel countered that Cadena’s
testimony had “opened the door.”  The
trial court disagreed, sustained the State’s objection, and excluded the
testimony.  
            Appellant’s
trial counsel subsequently offered the testimony via a bill of exception.  Appellant testified that he never sexually
abused either of his daughters.  He pled
guilty because of his prior felony convictions and because his defense counsel
told him he was looking at fifteen years because of his past criminal
history.  Appellant also testified that
after he was arrested in June, “everything fell apart.”  He wanted to get out as quickly as he could
so that he could do whatever he needed to do to keep the family together.  
Standard
of Review
            Appellant
contends the trial court committed “plain error” by excluding his testimony and
that the trial court’s ruling “likely resulted in prejudice.”  We review a trial court’s decision to admit
or exclude evidence for an abuse of discretion. 
Bay Area Healthcare Group, Ltd. v.
McShane, 239 S.W.3d 231, 234 (Tex. 2007)(per curiam); In re C.R., 263 S.W.3d 368, 370 (Tex.App.--Dallas 2008, no pet.).  Evidentiary questions fall within the trial
court’s discretion, and the trial court’s ruling will not be subject to
reversal unless a clear abuse of discretion is shown.  Perryman
v. State, 798 S.W.2d 326, 329 (Tex.App.--Dallas 1990, no pet.); Werner v. State, 711 S.W.2d 639, 643
(Tex.Crim.App. 1986); see also Jackson v.
State, 575 S.W.2d 567, 570 (Tex.Crim.App. 1979)  “When a ruling excludes evidence, to preserve
error the appellant must have made the substance of the evidence known to the
trial court through an offer of proof, unless the substance of the evidence was
apparent from the context within which the question was asked.”  In re Commitment
of Day, 342 S.W.3d 193, 199 (Tex.App.--Beaumont 2011, pet. denied).  “To properly pass on the question of the
exclusion of testimony, the record should indicate the questions that would have
been asked, what the answers would have been and what was expected to be proved
by those answers.”  Lopez v. Southern Pacific Transportation Company, 847 S.W.2d 330,
336 (Tex.App.--El Paso 1993, no writ).
Analysis
            At
the termination hearing, Appellant tried to deny that he ever committed the
sexual offense and to offer reasons for his guilty plea.  “A collateral attack is an attempt to avoid
the binding force of a judgment in a proceeding not instituted for the purpose
of correcting, modifying, or vacating the judgment, but in order to obtain some
specific relief which the judgment currently stands as a bar against.”  Browning
v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005).  A guilty plea collaterally estops the
convicted party from relitigating his guilt because, “a valid guilty plea
serves as a full and fair litigation of the facts necessary to establish the
elements of the crime.”  Johnston v. American Medical International,
36 S.W.3d 572, 576 (Tex.App.--Tyler 2000, pet. denied), quoting State Farm Fire & Cas. Co. v. Fullerton, 118 F.3d 374,
378, 384 (5th Cir. 1997)(internal quotations omitted).
            Appellant
directs our attention to In the Interest of S.J.G., 124 S.W.3d 237
(Tex.App.--Fort Worth 2003, pet. denied) and In the Interest of A.H.L., III, 214 S.W.3d 45, 56 (Tex.App.--El Paso
2006, pet. denied).  In In re S.J.G., the defendant pled guilty
to sexually assaulting his four-year-old daughter and was sentenced to
thirty-five years’ imprisonment.  124
S.W.3d at 240.  The State filed a
petition to terminate the parent-child relationship between the defendant and
S.J.G.  Id.  At the termination
hearing, an investigator with TDPRS testified in detail regarding an outcry
statement the child made about the sexual assault.  Id.
at 245.  The detective who interviewed
the defendant testified that the defendant had confessed to the assault in
detail, saying things such as, “that he had put his penis in S.J.G.’s mouth ten
times or less and put his finger in her anus on at least two occasions,” that
during “ the three-month period in which S.J.G. lived with him, he had sexually
assaulted her eight times,” and that he committed the abuse because “he just
could not overcome his urges.”  Id. 
The defendant claimed he was fooled into pleading guilty and denied ever
sexually assaulting S.J.G.  Id. 
He was drunk when he confessed to the police and did not remember the
entire conversation.  Id. 
Based on the defendant’s guilty plea, his confession, and other
evidence, the trial court terminated his parental rights.  Id.
at 240.  The order specified that
termination was appropriate under Section 161.001 (1)(D), (E), (L), and
(Q).  Id.
at 239.  The father appealed and
challenged the factual sufficiency of the evidence to sustain the court’s
findings.  Id. at 244.  The court of appeals
found the evidence sufficient to prove that he “knowingly placed S.J.G. in
conditions or surroundings that endangered her physical and emotional
well-being and that [he] engaged in conduct that endangered S.J.G.’s physical
or emotional well-being.”  Id., citing Tex.Fam.Code Ann. § 161.001(1)(D), (E).  The court did not address whether the
evidence was sufficient to sustain the other two grounds, nor was it asked to
determine (1) the admissibility of the defendant’s testimony denying that he
committed the offense, or (2) whether a defendant is permitted to collaterally
attack a final conviction.  See In re A.H.L., III, 214 S.W.3d at
55.  There, the appellant argued that the
trial court erred by failing to provide him an evidentiary hearing based on his
contention that his counsel was ineffective for failing to collaterally attack
his aggravated assault conviction.  Id. at 55-56.  In support of his claim, the appellant cited
to S.J.G.  This court responded simply:
We find the case distinguishable. 
In the absence of any other authority permitting [the appellant] to
collaterally attack his final conviction, we conclude that [the appellant] was
not entitled to an evidentiary hearing on this allegation.
 
Id.
 
            Appellant’s
guilt had already been determined in the prior criminal proceeding.  Therefore, the issue of Appellant’s guilt
could not be relitigated, regardless of the reasons for his guilty plea. Finding
no abuse of discretion, we overrule Issue One.  See
Johnston, 36 S.W.3d at 576. 
SUFFICIENCY OF THE EVIDENCE TO SUPPORT TERMINATION
UNDER 
TEXAS FAMILY CODE SECTION 161.001(1)(L)(iv)
 
            The
trial court ordered termination of Appellant’s parental rights based in part on
a finding that the State proved, by clear and convincing evidence, that
termination was appropriate under Texas Family Code Section 161.001(1)(L)(iv).  Section 161.001(L)(iv) provides as follows:
The court may order termination of
the parent-child relationship if the court finds by clear and convincing
evidence:
 
(1)  that the parent has: 
.          .          .
 
(L)  been convicted or has been placed on community
supervision, including deferred adjudication community supervision, for being
criminally responsible for the death or serious injury of a child under the
following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious
injury of a child and that would constitute a violation of one of the
following Penal Code sections:
.          .          .
 
(iv)  Section 21.11 (indecency with a child);
 
[Emphasis added].  Tex.Fam.Code
Ann. § 161.001(1)(L)(iv).  
            In
Issue Two, Appellant contends that there is no evidence or factually
insufficient evidence to terminate his parental rights under Section
161.001(1)(L)(iv) of the Texas Family Code. 
On appeal, Appellant does not challenge the sufficiency of the evidence
to prove he was placed on deferred adjudication community supervision for the
offense of indecency with a child.[4]  Rather, Appellant contends there is no
evidence, or insufficient evidence, to prove that his conduct “caused the death
or serious injury of a child,” as required under subsection (L).
            Few
cases address what constitutes “serious death or injury” as required by Section
161.001(1)(L).  In his brief, Appellant
relies heavily on Vidaurri v. Ensey,
58 S.W.3d 142 (Tex.App.--Amarillo 2001, no pet.).  There, the Enseys filed a petition to
terminate Vidaurri’s parental rights to his biological son and sought a
judgment permitting them to adopt the child. 
Vidaurri, 58 S.W.3d at
144.  Although the petition alleged several
grounds for termination, the trial court ordered termination under ground
(L)(iv), based on Vidaurri’s conviction for indecency with his stepdaughter.[5]  Id.
at 144-145.  Specifically, the trial
court found by clear and convincing evidence that Vidaurri “had been placed on
deferred adjudication community supervision for being criminally responsible
for the death or serious injury of a child under section 21.11 of the Texas
Penal Code.”  Id. at 144. (internal quotations omitted).  Vidaurri alleged that the Enseys failed to
prove the “death or serious injury of a child” element under Texas Family Code
Section 161.001(1)(L)(iv).  Id. 
The appellate court agreed, finding no evidence of serious injury of a
child.[6]  Id.  (stating that “analysis
leads us to conclude that the foregoing indicia, whether considered
collectively or separately, fall short of constituting a scintilla of evidence,
much less some evidence, of serious injury.”). 

            While
the Texas Supreme Court has not directly addressed the issue, it has commented
on it.  See In the Interest of L.S.R., 92 S.W.3d 529 (Tex. 2002)(per
curiam); In In the Interest of L.S.R.,
60 S.W.3d 376 (Tex.App.--Fort Worth 2001, pet. denied), the appellant
challenged the legal sufficiency of the evidence to terminate his parental
rights under Section 161.001(1)(L)(iv) of the Texas Family Code.  The evidence at trial demonstrated that he
had received deferred adjudication for the offense of indecency with a child,
and that the offense occurred when he was sixteen and the victim (his cousin)
was four years old.  Id.  The court of appeals
recounted that appellant was treated for pedophilia.  Id.  The court concluded: 
While the conviction might be
sufficient evidence of death or injury in those cases where death or serious
injury to the child is an element of the offense, we hold that where death or
serious injury is not an element of the offense, the conviction or deferred
adjudication is not by itself sufficient evidence to support termination under
section 161.001(1)(L)(iv).
 
Id. at 379.  Although the
Supreme Court denied the petition for review, it issued the following per curiam statement:
J.R. and L.R. appeal a judgment
terminating their parental rights to their daughter, L.S.R.  Section 161.001(1)(L)(iv) of the Texas Family
Code provides for termination if a parent has been convicted or placed on
community supervision, including deferred adjudication community supervision, ‘for
being criminally responsible for the death or serious injury of a child’ under
various Penal Code sections, including a conviction for indecency with a child
under Section 21.11 of the Penal Code. 
The State presented evidence at trial showing that J.R. had received
deferred adjudication for the offense of indecency with a child, an offense
J.R. committed against his four-year-old cousin when he was sixteen.  The court of appeals held that there was no
evidence to support termination under Section 161.001(1)(L)(iv) because there
had been ‘no showing that J.R.’s cousin suffered death or serious injury as a
result of his conduct.’  The court of
appeals deleted this ground for termination from the judgment, but otherwise
affirmed the judgment against J.R. 
 
We deny the petitions for review, but
disavow any suggestion that molestation of a four-year-old, or indecency with a
child, generally, does not cause serious injury.  [Emphasis added]. 
 
In re L.S.R., 92 S.W.3d at 529.  (Internal citations and quotations omitted). 


 
 
Application
and Analysis
            Here,
the record contains expert testimony from the child’s therapist.  Cadena is a licensed clinical therapist who
began providing therapy sessions for five of the six children upon their
removal in September 2009.  She continued
to provide therapy at the time of trial.[7]  She testified that Child C suffered from
severe anxiety issues.  The child
requires medication, suffers from enuresis and encopresis, and has been treated
in a mental hospital.  Child C does not
want to see her father and has expressed anger toward him, as well as fear
about returning to her prior living environment.  While what constitutes “serious injury” in
this context has not been specifically defined, the injuries suffered by this
child certainly support a finding that she suffered serious injury.  
            Appellant
complains that this testimony did not make a causal connection between the
sexual abuse and the child’s hospitalization. 
We disagree.  While Cadena may not
have specifically attributed all of Child C’s problems to the sexual abuse, she
did testify that  sexual abuse was a
factor.  Appellant cites no authority,
and we have found none, suggesting that sexual indecency must be the sole cause
of serious injury.  Considering all
evidence in a light favorable to judgment, we find the evidence legally
sufficient to support, by clear and convincing evidence, a determination that
Child C suffered serious injury as a result of Appellant’s indecent
conduct.  Likewise, in light of the
entire record, we find that evidence which a reasonable fact finder could not
have credited in favor of the finding is not so significant as to prevent the
fact finder from forming a firm belief or conviction regarding the finding of
serious injury.  Accordingly, the
evidence factually is sufficient.  We
overrule Issue Two. 
Best
Interest of the Children
            In
Issue Three, Appellant challenges the sufficiency of the evidence to support
the trial court’s best interest finding under Section 161.001(2).  There is a strong presumption that a child’s
best interests are served by maintaining the parent-child relationship.  In the
Interest of L.M., 104 S.W.3d 642, 647 (Tex.App.--Houston [1st Dist.] 2003,
no pet.).  The Supreme Court has set
forth a list of non-exclusive factors which can be used to determine a child’s
best interests.  See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  The determination of a child’s best interest
does not require proof of any unique set of factors, and it does not limit
proof to any specific factors.  Id.  Under Holley,
in reviewing the sufficiency of the evidence to support a best-interest
finding, courts may consider (1) the desires of the child, (2) the present and
future physical and emotional needs of the child, (3) the present and future
emotional and physical danger to the child, (4) the parental abilities of the
persons seeking custody in promoting the best interest of the child, (5) the
programs available to assist these individuals to promote the best interest of
the child, (6) the plans for the child by the individuals or agency seeking
custody, (7) the stability of the home or proposed placement, (8) acts or
omissions of the parent which may indicate the existing parent-child
relationship is not appropriate, and (9) any excuse for the parent’s acts or
omissions.  Id.  The same evidence of
acts or omissions used to establish grounds for termination under Section
161.001(1) may be probative in determining the best interests of the child.  In re
C.H., 89 S.W.3d at 28; In re L.M.,
104 S.W.3d at 647.  Termination of the
parent-child relationship is not justified when the evidence shows merely that
a parent’s failure to provide a more desirable degree of care and support of
the child is due solely to misfortune or the lack of intelligence or training,
and not to indifference or malice.  Clark v. Dearen, 715 S.W.2d 364, 367
(Tex.App.--Houston [1st Dist.] 1986, no writ).
            Turning
to the Holley factors, the children’s
therapist testified that the two girls do not want to even see their father,
and Children B, C, and D were fearful of returning to their father and the same
environment they experienced before TDFPS removed them.  The children were doing well, “moving
forward,” and have a “positive outlook for the future.”  The case worker testified that the five
youngest children were all placed together in a foster care with the World for
Children.  These children were excited
about being adopted.  Child A is willing
to be adopted, but only by a family member. 
He is the only child to express any interest in seeing Appellant.
            “The
goal of establishing a stable, permanent home for a child is a compelling state
interest.”  See Walker v. Texas Department of Family and Protective Services,
312 S.W.3d 608, 616-17 (Tex.App.--Houston [1st Dist.] 2009, pet. denied), citing In re C.E.K., 214 S.W.3d 492, 498
(Tex.App.--Dallas 2006, no pet.).  Prior
to removal, it could hardly be said that Appellant provided the children with a
stable, permanent, or sanitary home. 
They were forced to move frequently, often living in roach infested
motels.  They were exposed to drug use
and domestic violence.  Child E tested
positive for cocaine.  The children also
expressed fear about returning to their parents because they remembered not
having enough food to eat.  
            With respect to emotional needs, the
evidence clearly showed that the children expressed anger toward their
father.  Several of the children had
emotional problems, including severe anxiety, and required medication.  Three of the children suffered from enuresis
and encopresis up until about three months before trial.  Both girls told their therapist they had been
sexually abused by Appellant.  They were
afraid of him and did not want to see him. 
While Cadena did not relate the specifics regarding the abuse at trial,
she did testify that both girls recounted the abuse to her in detail.  The girls’ stories never changed and Cadena
believed they both were telling the truth. 
We also note that, in addition to the evidence above, the evidence
discussed in support of the trial court’s finding under Section 161.001(1)(L)(iv)
is also probative of a finding as to danger in determining the child’s best
interest.  See In re C.H., 89 S.W.3d at 28. 
            Appellant contends he met the
physical and emotional needs of the children. 
He focuses on the fact that he paid child support, complied with his
service plan, and regularly visited his children before he was incarcerated.
The fact finder was free to weigh the evidence of Appellant’s past conduct with
any evidence of his current or potential future conduct.  In so doing, it could have reasonably found
Appellant’s past conduct indicative of his inability to meet the children’s
physical and emotional needs in the future. 
See In the Interest of T.G.,
No. 14-09-00299-CV, 2010 WL 1379977, at *9 (Tex.App.--Houston [14th Dist.]
Apr. 8, 2010, no pet.).
There
is evidence in the record that Appellant behaved appropriately during his
visits with his oldest son.  But Appellant’s
prior history of drug abuse and domestic violence, as well as his conviction
for sexual abuse of his daughter, show a lack of parental ability.  Under the terms of his probation, Appellant
cannot have the children placed with him. 

Appellant
also maintains that he engaged in services prior to his arrest, continued
therapy after his release from jail, was making great strides in therapy, and
the therapist had reduced the frequency of sessions.  But there is no evidence of programs
available to assist him in caring for the children should they be returned, nor
does Appellant offer any evidence of programs or assistance which would lift
the term of his probation which prevents him from having contact with his
children.
The
caseworker and the therapist recommended termination of the parent-child
relationship because it will provide the children with stability and
permanence.  The plan for the children was
adoption.  And despite Appellant’s
efforts to cite to information focusing on the conduct of the foster parents,
none of the information was before the trial court nor is it properly contained
in the record of this court. 
In
light of all of the evidence, the trial court could have reasonably formed a
firm belief or conviction that termination of Appellant’s parental rights was
the best interest of the children.  Accordingly,
we hold that the evidence is both legally and factually sufficient to support the
trial court’s finding that termination of Appellant’s parental rights was in
the best interest of the children.  We
overrule Issue Three and affirm the trial court’s order of termination. 
 
 
November 8, 2012                                          __________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.
 




[1]  In order of
oldest to youngest, the children’s initials are R.F., V.F., A.F., R.F., A.F.,
and J.F.  In his brief, Appellant assigns
the letters A-F to the children as follows: 
 
                Child A’s initials are R.F.
                Child B’s initials are V.F.
                Child C’s initials are A.F.
                Child D’s initials are R.F.
                Child E’s initials are A.F.
                Child F’s initials are J.F.
 
For ease of reference, we
will do likewise.
 


[2]  The
allegations related only to Child C.  But
at the May 4, 2012 hearing, testimony revealed that both Child C and Child B
were sexually assaulted by Appellant.  


[3]
 This heightened standard is likewise
statutorily mandated.  See Tex.Fam.Code
Ann. § 161.001 (West 2008)(stating that, “The court may order
termination of the parent-child relationship if the court finds by
clear and convincing evidence . . . .” 
[Emphasis added]).


[4]
 The evidence in the record includes the
indictment which charges Appellant with intentionally or knowingly engaging in
sexual contact with his daughter by touching her genitals.  The record also includes a copy of the final
judgment and conviction for the offense. 
Therefore, the evidence clearly demonstrates that Appellant pled guilty
to the offense of indecency with a child and was placed on deferred
adjudication community supervision for that offense.  We also note that the indictment and final
judgment ordering deferred adjudication were admitted into evidence without
objection.  


[5]
 Vidaurri pled guilty to charges of
sexual indecency with his stepdaughter and was granted deferred adjudication
community supervision.  Vidaurri, 58 S.W.3d at 144-145.  He was later adjudicated guilty and
imprisoned.  Id. at 145.  At the time of
the appeal, Vidaurri, had filed a
writ of habeas corpus attacking his original guilty plea.  Id.



[6]
 The appellate court rejected the trial
court’s finding of fact that Vidaurri had been placed on deferred adjudication
community supervision for being criminally responsible for serious injury to a
child.  Vidaurri, 58 S.W.3d at 146 (holding that the trial court’s finding,
“is not in and of itself evidence that Vidaurri was criminally responsible for
serious injury to a child.”  Id. at 147.  The court similarly rejected evidence of an
order prohibiting Vidaurri from contacting his stepdaughter.  Vidaurri,
58 S.W.3d at 147 (“nothing before us indicates that the only reason why such a
condition could be imposed is because he seriously injured a child while
committing the indecency”).  The
confession could not be considered because Vidaurri did not confess but instead
invoked his Fifth Amendment right against self-incrimination.  Id.
at 146; 147.  Even had he done so, “the
only way that the confession itself could be some evidence of having seriously
injured [his stepdaughter] would be if such injury were implicit in the offense
of indecency with a child.”  Id. at 147.  The court was unwilling to hold that serious
injury was implicit in the offense and therefore concluded that Vidaurri’s
non-confession “in and of itself constitutes no evidence of serious injury.”  
[T]he effect, if any, of the
incident upon her physical or mental condition went unaddressed at trial.  Similarly absent is any testimony, expert or
otherwise, suggesting that one who has been the victim of an indecency within
the ambit of § 21.11 necessarily suffers any injury, serious or otherwise.  
Id.


[7]
 In addition to her testimony, Cadena’s
records from her therapy sessions with the children were admitted into evidence
without objection.  


