                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00075-CV


In the Interest of D.R.J. and T.F.J.,      §   From the 323rd District Court
Children
                                           §   of Tarrant County (323-90797J-09)

                                           §   February 7, 2013

                                           §   Opinion by Justice Meier

                                           §   Concurrence by Justice Gardner

                                   JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order. It is ordered that the judgment of the

trial court is affirmed.


                                        SECOND DISTRICT COURT OF APPEALS



                                        By_________________________________
                                          Justice Bill Meier
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00075-CV


IN THE INTEREST OF D.R.J. AND
T.F.J., CHILDREN


                                      ----------

        FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                                    OPINION

                                      ----------

      In a single issue, Appellant J.J. appeals the trial court’s order terminating

her parental rights to her children, D.R.J. and T.F.J. We will affirm.

      CPS received a referral on June 1, 2009, involving concerns of sexual

abuse of J.J., her sister M.J., and her twin cousins L.J.1 and L.J.2 by J.J.’s and

M.J.’s brother K.M. At the time of the referral, all were members of the same

household with C.J.—J.J.’s, M.J.’s, and K.M.’s mother.          This was the sixth

referral involving C.J.’s home since April 2007. CPS had received a referral then

involving neglectful supervision of J.J. by C.J. because J.J. was fourteen years

old and pregnant. CPS received a second referral in January 2008 involving

                                          2
sexual abuse of J.J., M.J., L.J.1, and L.J.2 by K.M. CPS received a third referral

in June 2008 involving neglectful supervision of J.J. by C.J. because J.J. was

pregnant with her second child. CPS received a fourth referral in August 2008

involving sexual abuse of L.J.1 by K.M. And in January 2009, CPS received a

fifth referral involving sexual abuse of L.J.1 and L.J.2. Each of the first five

referrals were either closed at intake, closed administratively, or ruled out.

      CPS investigator Beth Hobbs met with J.J. on two occasions to discuss the

latest referral. At the first meeting, J.J. was in juvenile detention for evading

arrest after an altercation with C.J. C.J. had whipped J.J. with a two- to three-

foot board and a weapon, and J.J. had grabbed a knife and threatened C.J.

before jumping out of a two-story window onto C.J.’s car. Hobbs concluded the

interview quickly because J.J. was uncommunicative. At the second meeting,

J.J. expressed that she had no concerns about her children, including having

them in her mother’s care, and she was unwilling to speak about whether K.M.

was the father of her two children.       Hobbs also spoke with C.J., who was

unwilling to work with CPS. Concerned about (1) the ongoing sexual relationship

between J.J. and K.M., which C.J. appeared to be aware of, and (2) D.R.J. and

T.F.J. being at risk for sexual abuse by K.M. like J.J., M.J., L.J.1, and L.J.2, CPS

removed D.R.J., and T.F.J. (and J.J., M.J., L.J.1, and L.J.2) from C.J.’s

household. All of the children were placed into foster care.

      J.J. moved between foster homes from June 2009 to September 2010. At

one point, D.R.J. and T.F.J. lived with J.J. at a foster home, and DFPS felt that


                                          3
J.J. had moved closer towards complete reunification with her children.

However, J.J.’s behavior, including an incident in which she threw water from a

microwave that hit T.F.J., concerned the foster parent, and J.J. was ultimately

removed from the foster home and admitted to a psychiatric hospital. After being

released from the hospital, J.J. demanded to be returned to her mother’s care.

Concerned that J.J. returning to C.J.’s household would “set [J.J.] back

tremendously,” DFPS opposed her request, but she was ultimately permitted to

live with C.J.

      J.J. successfully performed only some of the services that the trial court

ordered her to complete to obtain the return of D.R.J. and T.F.J. At some point,

DFPS’s plan for J.J. regarding D.R.J., and T.F.J. changed from reunification to

termination.

      J.J. testified at trial that K.M. had sexually abused her, M.J., L.J.1, and

L.J.2; that K.M. began sexually abusing her when she was twelve years old; that

K.M. continued to sexually abuse her until she was placed into foster care; and

that K.M. is the father of her two children. J.J. explained that she moved back to

C.J.’s household despite realizing that she “wouldn’t be able to get [her] kids”

back, and she acknowledged squandering numerous opportunities for counseling

and family therapy. The jury found by clear and convincing evidence that

termination of the parent-child relationship between J.J. and D.R.J. and T.F.J.

was proper under family code section 161.001(1)(O) and that termination was in

the children’s best interests.


                                        4
       In her only issue, J.J. challenges the legal and factual sufficiency of the

evidence to support the jury’s findings that D.R.J. and T.F.J. were removed from

J.J.’s care due to abuse or neglect by her against each of the children.

       Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a)

(West 2008). 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 (West 2008).

       In evaluating the evidence for legal sufficiency in parental termination

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

reasonably form a firm belief or conviction that the challenged ground for

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

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

Id.   We consider evidence favorable to termination if a reasonable factfinder

could, and we disregard contrary evidence unless a reasonable factfinder could

not. Id.

       In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the verdict with our own.           In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

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

relationship would be in the best interest of the child. Tex. Fam. Code Ann.


                                          5
§ 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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.

      Termination of the parent-child relationship is warranted under family code

section 161.001(1)(O) if the parent has

      failed to comply with the provisions of a court order that specifically
      established the actions necessary for the parent to obtain the return
      of the child 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.

Tex. Fam. Code Ann. § 161.001(1)(O) (emphasis added).

      As alluded to above, J.J. does not challenge the sufficiency of the

evidence to show that she failed to comply with the provisions of the order that

established the actions necessary for her to obtain the return of the children or

that the children had been in the conservatorship of DFPS for at least nine

months. Instead, she argues that while there is evidence that she, M.J., L.J.1,

and L.J.2 were sexually abused by K.M., there is no evidence or insufficient

evidence that D.R.J. and T.F.J. were removed from her care because (1) they

were abused or neglected (2) by her. J.J.’s arguments are unpersuasive.

      Applying well-established rules of statutory construction, subsection (O)

does not require that the parent who failed to comply with a court order be the

same person whose abuse or neglect of the child warranted the child’s removal.

                                          6
See In re S.N., 287 S.W.3d 183, 188 (Tex. App.—Houston [14th Dist.] 2009, no

pet.) (“Had the legislature intended such a requirement, it could have easily

provided that conservatorship be ‘as a result of the child’s removal from the

parent under Chapter 262 for the abuse or neglect of the child by the parent.’”);

In re M.N., No. 11-10-00129-CV, 2011 WL 917837, at *3 (Tex. App.—Eastland

Mar. 17, 2011, no pet.) (mem. op.) (reasoning similarly). Thus, notwithstanding

our reasoning below attributing abuse and neglect of D.R.J. and T.F.J. to J.J.,

DFPS did not have to prove that the abuse or neglect of D.R.J. and T.F.J. was

caused by J.J.

      As for the “abuse or neglect” prong of subsection (O), several appellate

courts have observed that “abuse or neglect” is not defined in the statute or by

the case law and must be determined on a case-by-case basis. See In re A.A.A.,

265 S.W.3d 507, 515 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see

also In re J.T.G., No. 14-10-00972-CV, 2012 WL 171012, at *14 (Tex. App.—

Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem. op.). We agree with that

assessment.

      Here, J.J. testified that K.M., her own brother, began sexually abusing her

at age twelve and continued to do so until she—and her two children fathered by

K.M.—were removed from C.J.’s household. K.M., whom J.J. described at trial

as a “predator,” also sexually abused M.J., his other sister, and L.J.1 and L.J.2,

his cousins. Thus, K.M., who had at one point been sent to juvenile detention for

sexual assault, had sexually abused almost every child in C.J.’s residence.


                                        7
When Hobbs questioned J.J. after the sixth referral, J.J. expressed no concern

about leaving her children in C.J.’s household. Further, it appeared to Hobbs

that C.J. was aware of K.M.’s incestuous sexual abuse, but there is no evidence

that she took steps to confront the situation.        The conservatorship worker

assigned to the case testified that there are “several” options available to a

thirteen year old who has a child and wants to move the child out of the house.

      The evidence of J.J.’s lack of concern about leaving D.R.J. and T.F.J. in

the same environment where K.M. was sexually abusing other family members

was sufficient to show neglectful supervision of D.R.J. and T.F.J. by J.J.

Moreover, the undisputed evidence of ongoing sexual abuse of multiple family

members occurring in the same household where D.R.J. and T.F.J. lived was

sufficient to demonstrate emotional abuse of D.R.J. and T.F.J. while in J.J.’s

care. Accordingly, we hold that the evidence is legally and factually sufficient to

support the jury’s family code section 161.001(1)(O) findings. See Tex. Fam.

Code Ann. § 161.001(1)(O). We overrule J.J.’s only issue and affirm the trial

court’s order terminating J.J.’s parental rights to D.R.J. and T.F.J.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

GARDNER, J., filed a concurring opinion.

DELIVERED: February 7, 2013


                                          8
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00075-CV


IN THE INTEREST OF D.R.J. AND
T.F.J., CHILDREN


                                    ----------

        FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                         CONCURRING OPINION

                                    ----------

      I cannot agree that there was evidence of “abuse or neglect” by J.J. of her

two children that resulted in their removal by the Department. From my review of

the record, removal was due to neglect of J.J.’s children by C.J., J.J.’s mother,

not by J.J. Because I agree with the majority that, for termination of parental

rights under section 161.001(1)(O), the parent whose parental rights are sought

to be terminated need not be the same person whose “abuse and neglect”

resulted in the child’s removal and because I believe that the evidence is clear
and convincing that the children were removed because of neglectful supervision

by C.J., I concur in the affirmance of the trial court’s judgment.

      The “abuse or neglect” resulting in removal of children by the Department

need not have been committed by the parent whose rights are sought to be

terminated under subsection (O). See In re S.N., 287 S.W.3d 183, 185–86 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (op. on reh’g) (affirming termination of

father’s rights under subsection (O) although children had been removed from

mother, not father, and concluding that “subsection (O) does not require that the

parent who failed to comply with a court order be the same parent whose abuse

or neglect . . . warranted the child’s removal”); In re C.D.B., 218 S.W.3d 308,

309–12 (Tex. App.—Dallas 2007, no pet.) (upholding termination of mother’s

rights for failure to comply with order establishing actions necessary for return of

children who had been removed for father’s abuse of children during mother’s

absence); In re S.M., No. 04-04-00194-CV, 2005 WL 418540, at *1–4 (Tex.

App.—San Antonio Feb. 23, 2005, no pet.) (mem. op.) (affirming termination of

mother’s rights for failure to comply with court order under subsection (O) for

return of children removed as a result of her boyfriend’s abuse of one of the

children); see also In re C.M.C., No. 14-12-00186-CV, 2012 WL 3871359, at *1,

4 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, no pet.) (mem. op) (op. on

reh’g) (affirming termination of father’s rights for failure to comply with court order

under subsection (O) for return of children whose removal was the result of

abuse or neglect by mother); In re M.N., No. 11-10-00129-CV, 2011 WL 917837,


                                          2
at *3 (Tex. App.—Eastland Mar. 17, 2011, no pet.) (mem. op.) (holding removal

of children for neglectful supervision of child by mother sufficed for termination of

father’s parental rights under subsection (O) for failure to comply with service

plan as required to obtain return of children).

      Here, the evidence—ranging from the history of prior referrals and from the

investigation at the time of the removal—was undisputed that physical abuse and

neglectful supervision of J.J., her sister, and her two children had been ongoing

by C.J. for several years; C.J. had ignored, if not allowed, the sexual abuse of all

of the children in the household by K.M. As the majority notes, it appeared that

C.J. knew of K.M’s ongoing incestuous behavior, but C.J. took no steps to

confront it, was unwilling to discuss it, and did not cooperate with the

Department.    This evidence was sufficient to constitute clear and convincing

evidence in this case for removal of the children for neglectful supervision by C.J.

under subsection (O) without faulting J.J., who was herself a victim and still only

sixteen at the time she, her sister, her cousins, and her children were finally

removed from C.J.’s home. The evidence of removal for neglectful supervision

by C.J. also harmonizes the jury’s affirmative finding in answer to the termination

questions based on (O) with the jury’s refusal to find that J.J. either knowingly

placed or knowingly allowed her children to remain in conditions or surroundings

which endangered their emotional or physical well-being under family code

section 161.001(1)(D) or that J.J. engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangered her children’s


                                          3
physical or emotional well-being under section 161.001(1)(E). See Tex. Fam.

Code Ann. § 161.001(D), (E), (O) (West Supp. 2012).

      Beth Hobbs was the CPS investigator assigned to the June 1, 2009

referral relating to C.J. as a result of concerns about K.M.’s sexual abuse of J.J.,

age sixteen; M.J., age thirteen; and J.J.’s twin cousins, age twelve, all of whom

were living in C.J.’s household.    Prior referrals began in April 2007 with an

allegation of neglectful supervision by C.J. because J.J. was fourteen years old

and pregnant. The January 30, 2008 referral involved allegations of physical

abuse by C.J. and K.M., who had recently moved back in the home, and sexual

abuse by K.M. of another cousin. A June 23, 2008 referral alleged neglectful

supervision of J.J. by C.J. because J.J., then the mother of a ten-month old child,

was pregnant again. Those cases were closed because no child made an outcry

of sexual abuse to the Department, but J.J. was admitted to and received

treatment from the adolescent psychiatric floor for suicidal ideations. Yet another

referral was made in August 2008 alleging sexual abuse of one of the cousins by

K.M., who had been in the Detention Center but was then back in the home.

That case was closed in part because the juvenile system was working with the

family. Before this case, the most recent referral was for alleged sexual abuse of

the cousins by K.M., who admitted that he had “hunched” one of the cousins, had

penetrated her anus between twenty and thirty times, and had performed oral

sex on the other cousin.




                                         4
      The June 1, 2009 referral that Hobbs received for this case was for sexual

abuse not only of M.J. and the cousins but also of J.J.’s two children. A report

then came in that J.J.’s children were fathered by her brother. Hobbs attended

J.J.’s detention hearing; interviewed the four older children; and spoke with C.J.,

her boyfriend, and a family friend and godparent to one of J.J.’s children who was

a possible placement option for J.J. or M.J. Hobbs presented a request to the

District Attorney’s office for removal of all of the children on June 5, 2009,

pursuant to section 262.104 of the family code, which allows for emergency

removal of children without a court order. See Tex. Fam. Code Ann. § 262.104

(West 2008).

      Respectfully, I believe that the majority’s reference to a “lack of concern”

by J.J. about leaving her children in her mother’s care does not fairly characterize

Hobbs’s testimony. Hobbs testified that she first tried to interview J.J. at the

Juvenile Detention Center on the date of the referral. This was a child who had

been beaten with a board by her mother the night before while her brother held

her down and joined in the beating until she escaped by jumping from a second-

story window. Hobbs said J.J. was “very quiet”; sat with her hands on her face;

only answered “a fight” as to why she was at the Detention Center; and

responded “yes,” “no,” or with no answer at all to other questions.          Hobbs

testified that J.J. “just really wasn’t communicative.” When Hobbs expressed

concern for the children’s safety in light of allegations that her brother was their




                                         5
father and that she had been the victim of ongoing sexual abuse, Hobbs said,

J.J. “was not willing to speak about that at that point.”

      Tyra Sasita, the conservatorship caseworker assigned over all of the cases

connected to J.J. and her family members, testified that when she first met with

J.J., J.J. had the demeanor of an abused child. She was withdrawn with little or

no eye contact. Sasita confirmed that J.J. would not talk with anyone and was

“very, very shy” at first. Sasita testified that her intent was to build J.J.’s trust and

to explain to her that none of it was her fault. J.J. eventually acknowledged not

only that she had been abused but also that all of the children in the home had

been abused by K.M.

      Sasita explained that working with abused children gets more difficult as

they get older. For a teenager, a pattern of behavior has set in, and “[t]hey don’t

really know that this chaotic environment that they’re living in is not . . . what we

would think of [as] normal.” The issue here is why the Department removed

J.J.’s children based upon the information available to it at the time, and there is

no evidence that the Department considered any lack of expression of concern

by J.J. for her children in the sexually abusive environment of her home as

neglectful supervision by her but, rather, as a sexual abuse victim’s initial

unwillingness to talk openly about her experience and concerns, particularly

regarding incest.

      Citing Sasita’s testimony, the majority seems to imply that J.J. was

neglectful because she had options she should have exercised to protect her


                                           6
children from the risk and environment in the household of sexual abuse. But

Sasita emphatically testified to the contrary:

           Q.     Okay.    How does a 13-year-old protect against sexual
      abuse?

             A. In terms of -- she’s a child -- I mean, that’s a child. The
      child is not supposed to. It’s a parent’s job to protect.

             Q. All right. I agree with you. So in terms of, would you think
      it’s very difficult for a 13-year-old to protect herself against sexual
      abuse?

             A. Yes, I would agree.

            Q. Do you think it would be difficult for a 14-year-old to protect
      herself against sexual abuse?

             A. Yes.

             Q. And a 15-year-old?

             A. Yes.

             Q. And a 16-year-old?

             A. Yes.

            Q. In the situation where a 13-year-old might have a child,
      what avenues are available for her to move her children outside of
      the home she’s in that you’re aware of?

             A. There are several. There are several different things that
      could have happened. I’m cautious to say, because I don’t believe
      it’s ever a child’s fault, so if you choose not to take any avenue,
      there are things, there are places out there, yes, but I’m not going to
      mandate that a child do that. Maybe she didn’t know to do that.

             Q. It’s a difficult situation.

             A. Very.



                                              7
            Q. This is a hard case.

            A. It is.

      Hobbs also confirmed that although the Department had concerns that

J.J.’s children were at risk of sexual abuse, it was not the Department’s position

that J.J. should have left the home or that she was not protective of her children.

Hobbs testified,

      No, that was our -- no. [J.J.] in my opinion is a victim of sexual
      abuse. Our concern was that [J.J.’s children] were at risk because
      they were in the same situation that she was in. . . . [O]ur concern
      was that these children were at risk of sexual abuse just like [J.J.]
      had been sexually abused, [M.J.] had been sexually abused, [the
      twin cousins], all by [K.M.] in the home.

      Based upon the foregoing portions of the record as well as J.J.’s own

testimony that it was very hard for her to talk about the abuse that had happened

in her home because of her feelings of shame and guilt and her belief that it was

all somehow her fault, there is no basis in the record that removal of J.J.’s

children by the Department was for “abuse or neglect” by J.J.

      On appeal, J.J.’s contention is that there was no evidence that her children

were removed as the result of any actual abuse or neglect but solely due to “risk”

of abuse or neglect, which some courts have held to be insufficient for

termination of a parent’s rights under subsection (O). She points to Hobbs’s

testimony, as quoted above, that her children were removed because they were

at risk of sexual abuse.    This court has previously held that evidence was

sufficient to establish removal for “abuse or neglect” based upon a CPS



                                        8
investigator’s personal knowledge of facts that would lead a person of ordinary

prudence to believe that there is “an immediate danger to the physical health or

safety of the child” as required for removal without a court order under family

code section 262.104(a)(1), (2). In re M.L.J., No. 02-07-00178-CV, 2008 WL

1932076, at *6 (Tex. App.—Fort Worth May 1, 2008, pet. denied) (mem. op.);

see Tex. Fam. Code Ann. § 262.104(a)(1), (2); see also S.N., 287 S.W.3d at 190

& n.2 (holding family service plan received in evidence without objection

contained sufficient factual recitations to support removal for “neglect” in that

police arrested mother for abandonment when children were left alone for over

twelve hours in filthy house, and court’s temporary order naming Department as

managing conservator found danger to children’s health or safety and

“substantial risk of continuing danger if the children are returned home”); In re

A.A.A., 265 S.W.3d 507, 510, 515–16 (Tex. App.―Houston [1st Dist.] 2008, pet.

denied) (op. on reh’g) (finding child was removed for abuse or neglect by mother,

not because she left child in shelter while she went to shoplift medicine from

store but because she made no effort to determine child’s location or condition

after being released from police custody, and trial court’s temporary order

naming Department likewise found a “continuing danger to the physical health or

safety of the child if returned to the parent”).

      The line of cases relied upon by J.J. holding that removal of children based

on mere risk of abuse or neglect is insufficient for termination based on violation

of subsection (O) are factually distinguishable, as each case involved either


                                           9
remote prior conduct of a parent concerning different children or a single incident

regarding a sibling without evidence of an ongoing threat of abuse or neglect to

the child in question at the time of removal. See In re S.A.P., 169 S.W.3d 685,

696–97, 704–06 (Tex. App.―Waco 2005, no pet.) (holding evidence did not

establish abuse or neglect under (O) where child was removed from mother three

days after birth solely based on remote prior history that parents had rights to

other children terminated; caseworker testified that child was not removed for

abuse or neglect but only because of prior history, and there was no evidence

the prior conduct created any future threat); see also In re E.C.R., No. 01-11-

00791-CV, 2012 WL 897777, at *1, 4–6 (Tex. App.―Houston [1st Dist.] Mar. 15,

2012, no pet.) (holding evidence legally insufficient for termination under (O) as

to child removed due to “risk” based on incident in which witness claimed mother

dragged a sibling down a street by her ponytail causing bruises and scrapes and

evidence child was behind on immunizations); Mann v. Dep’t of Family &

Protective Servs., No. 01-08-01004-CV, 2009 WL 2961396, at *7 (Tex.

App.―Houston [1st Dist.] Sept. 17, 2009, no pet.) (mem. op.) (holding evidence

insufficient under (O) where child was removed a few days after birth based

solely on risk of abuse because a sibling was in the care of the Department

based on allegations of physical abuse).

      Here, the evidence was undisputed that J.J., her two children, her sister,

and her twin cousins were all removed and placed in separate foster homes

because of longstanding and ongoing sexual abuse by K.M. of J.J., M.J., and


                                        10
other children in the household and because of C.J.’s neglectful supervision of all

of the children. Therefore, rather than holding as the majority does that the

children were removed because of J.J.’s neglectful supervision, I would overrule

J.J.’s sole issue because the evidence was clear and convincing that J.J.’s

children were removed from the parent under chapter 262 for neglectful

supervision by C.J.




                                                   ANNE GARDNER
                                                   JUSTICE

DELIVERED: February 7, 2013




                                        11
