                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                           No. 04-16-00259-CV

                           IN THE INTEREST OF A.P. and O.B., Children

                      From the 225th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014-PA-01950
                            Honorable Martha B. Tanner, Judge Presiding 1

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: October 5, 2016

AFFIRMED

           Christopher B. and Brittany B. appeal the trial court’s order terminating their parental rights

to their child O.B. Brittany also appeals the termination of her parental rights to her child A.P.

Brittany contends the trial court erred in admitting hearsay, and the evidence is legally and

factually insufficient to support the trial court’s finding of the statutory predicate grounds for

termination.      Christopher and Brittany both contend the evidence is legally and factually

insufficient to support the trial court’s finding that termination of their parental rights was in their

respective children’s best interest. We affirm the trial court’s order.




1
 The Honorable Barbara H. Nellermoe presided over the trial and verbally pronounced the order. The Honorable
Martha Tanner signed the written order.
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                                          BACKGROUND

       The trial court terminated Christopher and Brittany’s parental rights after a three-day bench

trial held on January 11-13, 2016. The following summarizes the trial testimony.

       In July of 2014, an investigator with the Texas Department of Family and Protective

Services was assigned to investigate the case involving A.P. and O.B. The investigator had

difficulty locating the family because of the number of times they had moved. The investigator

first met with Brittany at the home of a friend where she was staying because they had been evicted

for failing to pay rent. At that time, O.B. was the only child living with her because Brittany sent

A.P. to live with her sister and brother-in-law in December of 2013 where she believed A.P. would

be safer. Brittany told the investigator that Christopher’s behavior had become very erratic over

the past three to six months. Brittany stated she believed Christopher would not harm O.B. since

she was his biological child. The investigator believed the domestic violence had been occurring

for approximately a year but had escalated in the prior six months.

       Brittany informed the investigator that she had been the victim of domestic abuse and had

been strangled and raped by Christopher. Brittany stated O.B. was present during the domestic

violence. Brittany explained Christopher was hallucinating and seeing names and words of a

sexual nature on the walls, floors, Brittany’s body, and O.B.’s body. The investigator noted

Brittany had several large scars on her arms. When the investigator asked Brittany about one scar,

which was a large name carved across her forearm, Brittany stated the wound was self-inflicted.

       The investigator drug tested Brittany, and she tested positive for methamphetamines.

Brittany stated Christopher was also using methamphetamines and had been mentally unstable

with increasingly erratic behavior.

       The investigator also spoke with Christopher. Christopher initially denied any domestic

violence but later stated he treated Brittany like a prostitute. Christopher admitted he experienced
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hallucinations and that he would hold a knife against Brittany’s skin with the thought to physically

put the names on her that he saw on her skin. Christopher refused a drug test but admitted to using

methamphetamines.

       The investigator also interviewed A.P. who stated “mommy and daddy hit each other in

the face and that was why mommy had a black eye.” The investigator believed A.P. witnessed the

domestic abuse.

       At trial, Brittany’s testimony differed from her prior statements to the investigator.

Brittany testified she had been involved with Christopher for five years. Brittany stated she placed

A.P. with her sister in December of 2013 due to financial difficulties. Brittany denied that A.P.

witnessed Christopher hitting her. She also denied telling Dr. Jacob Pickard, the therapist who

evaluated her in October of 2014, that Christopher had raped her or had hit her at any time. Brittany

admitted Christopher was seeing sexually explicit statements written on the walls about Brittany

engaging in an affair. She denied stating Christopher had stood over her with a knife in his hand.

Brittany also denied taking pictures of injuries to her face. Brittany stated her decision to carve

Christopher’s name on her arm was a “dumb decision” she made to “get him to see the difference

between reality and delusions.” In response to whether Christopher saw visions on O.B., Brittany

stated he saw hallucinations everywhere. She also stated Christopher had a suicidal thought in

March of 2015 but sought help. Brittany testified she had last been employed from December of

2013 to April of 2014 in records management. She stated she had lived in six places in the past

five years. Brittany testified Christopher was disabled and began receiving $3,187 per month in

April or May of 2015. She also stated Christopher physically inspects O.B. during their visitations.

       Brittany had another baby in July of 2015, and she stated they were able to handle the stress

in raising him by communicating instead of resorting to drugs and violence. Although Brittany

admitted she and Christopher tested positive for drugs when the Department first removed the
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children, she stated they both tested negative since that time. Brittany testified Christopher and

his doctor agreed that Christopher could discontinue his medication in July or August of 2015

because he was no longer having hallucinations. Two photographs of Brittany depicting injuries

to her face were introduced into evidence. Brittany testified the injuries resulted from her and

Christopher falling to the ground when Brittany began slapping him during a panic attack while

he attempted to restrain her.

       Mark B., Brittany’s brother-in-law, testified he and his wife, Brittany’s sister, were

concerned for A.P.’s safety and stability. Mark was also concerned about Brittany’s relationship

with Christopher when he observed her with a black eye. Brittany also told her family Christopher

had choked and raped her. Mark testified Christopher had made threats against him and his family.

Mark and his wife wanted to adopt A.P. and O.B. Mark testified about an incident that occurred

on May 16, 2015, in which A.P. told him he used to shower with Christopher, and Christopher let

A.P. wash his penis. A.P. sees a therapist once a week and his behavior has improved. When A.P.

first moved in with Mark and his wife, A.P. had a very bad temper and would punch or kick the

dogs, slam the doors, and scream at them to get out of the house. When Mark asked A.P. why he

hurt the dogs, he responded that was what Christopher did to his dog. A.P. also kicked his

grandmother and called her a “cunt.” When questioned, A.P. stated Christopher called Brittany

that name.      A.P. threw a Frisbee on the playground at school and screamed “take that,

motherfucker.” Since being in therapy, A.P. has not cursed in many months and no longer punches

or screams but is more in control of his emotions. Mark testified the children were bonded to him

and his wife.

       Esther P., Brittany’s mother, testified Brittany called her in May of 2014 from the balcony

of her apartment. Brittany told Esther she was afraid and that Christopher and another woman

were cutting up her clothes. Esther requested a police escort to accompany her to the apartment.
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When she went up the stairs, Christopher was very angry and cussing at her. Esther saw Brittany

had a black eye and a bruise on her arm. Brittany told Esther she fell over some clothes on the

floor and refused to press charges against Christopher or leave the apartment with Esther. Esther

recalled another time when A.P. told her a couple was living with them, and the man was sleeping

with A.P. on the couch. She later learned the couple were drug dealers. Esther testified she last

gave Brittany money about four months before trial. Since the Department filed the petition in the

underlying cause, Brittany has stayed away from the family for long periods of time.

       Christopher testified he has five children including the two children with Brittany. He

stated the monthly disability payment he now receives helps with his finances; however, he still

has outstanding debts, including $85,000 in outstanding child support. He also stated he and

Brittany had lived in the same apartment for almost a year.            Christopher denied taking

methamphetamines when the children were present but admitted he would go outside, use

methamphetamines, and then be around the children. He denied beating Brittany but admitted he

swung a makeup box and accidently hit Brittany in the face. Christopher denied choking Brittany,

standing over her with a knife, or raping her. He admitted having hallucinations including seeing

a sexually explicit statement on Brittany’s forehead regarding another man, but he denied seeing

writings on O.B. Christopher admitted ripping up Brittany’s clothes on one occasion but denied

Brittany was injured on that occasion. Christopher stated he was no longer taking antipsychotic

medication and had informed his doctor when he stopped taking the medication several months

earlier. He had not seen his doctor for about three or four months but no longer had hallucinations.

Christopher admitted he took showers with A.P. but denied he acted inappropriately. Christopher

believed his sister-in-law and Mark were having A.P. make up stories but denied making any

threats against their family. Christopher believed his sister-in-law and Mark were neglecting the

children because they showed up for visits dirty and A.P.’s teeth had not been brushed for weeks.
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Christopher denied physically inspecting O.B. during their visits. He also denied saying he used

Brittany as a prostitute. With regard to his service plan, Christopher testified he attended his

visitations with the children, completed a domestic violence class, participated in a parenting

session and parenting education course, completed a drug assessment and psychological

evaluation, and continued to attend counseling. Christopher stated all of his drug tests were

negative since the Spring of 2015. Christopher was last employed in December of 2011 but was

receiving $3,187 in monthly disability at the time of trial. He admitted, however, that he had not

paid child support while the case was pending. He also admitted he did not call the caseworker to

ask about the children. Christopher stated Brittany carved the word “whore” on her arm. 2

        Dr. Jacob Pickard, a clinical psychologist, evaluated Christopher and Brittany, and his

written reports were admitted into evidence. Brittany reported several instances of domestic

violence including a black eye, choking, and Christopher standing over her with a knife while she

was sleeping. Brittany also reported Christopher had hallucinations and would see writing on O.B.

With regard to Brittany’s testimony denying these reports, Dr. Pickard stated her denials are an

indication that she had not benefited from the services she was provided. Dr. Pickard also stated

Brittany was putting Christopher’s interest ahead of the children’s and, as a result, would be unable

to protect the children. Dr. Pickard testified if Brittany and Christopher continued to deny the

domestic abuse and that their prior drug use harmed the children, they did not benefit from the

services provided to them. Christopher reported being diagnosed with major depressive disorder

with psychotic features while in the military. Christopher also discussed his hallucinations and

reported seeing writings on O.B. He admitted standing over Brittany while she was sleeping and

thought about cutting the words he saw off her skin. He also admitted being under the influence


2
  Brittany testified she carved Christopher’s name on her arm and denied she ever carved the word “whore” on her
arm.

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of methamphetamines in front of the children. Dr. Pickard determined Christopher had chronic

mental illness with psychotic components. Dr. Pickard stated he would be very concerned if

Christopher had not seen a doctor in four months and was not taking medication. He also stated it

would be very rare and very unlikely that a person with Christopher’s mental health problems

would be able to control their own behavior without mental health assistance. Dr. Pickard had not

seen Brittany or Christopher since he completed the evaluations in October and November of 2014.

Dr. Pickard stated Christopher completing his service plan and attending counseling were positive

steps; however, Christopher would need to be engaged in counseling not just attending the sessions

to truly benefit.

        The Department’s caseworker testified she was the caseworker the entire time the case was

pending and termination of Christopher and Brittany’s parental rights would be in the children’s

best interest. She also testified she did not believe Brittany was truthful. Although Brittany first

admitted the prior domestic abuse and drug use, Brittany later denied any such problems. The

caseworker did not believe Brittany had achieved anything from the courses she had taken and had

explained to Brittany the service plan was not simply a check list of items to be completed.

Although Brittany had completed several items listed in the service plan, Brittany had not made

any progress towards the actual goals and places her relationship with Christopher ahead of the

children’s needs. During visits with the children, Brittany was not able to balance her attention

and ended up favoring one child or the other, and Brittany did not call and ask about the children

between visits. Although Christopher and Brittany had completed services listed in their plans,

the caseworker testified they have not made any positive life changes or demonstrated that they

would put the children’s needs before their own. In addition, they continue to deny all allegations

of physical violence. The caseworker was told Christopher checks O.B. from head to toe almost

every single visit, and A.P.’s behavior becomes aggressive, erratic, and angry when he visits with
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Brittany. During one visit, Brittany told A.P. he could not go home if he did not stop lying. When

the caseworker once asked A.P. why he pushed O.B. down, he responded it was what Christopher

did to Brittany. A.P. told the caseworker that Christopher used to hit him so hard he could not sit

down. A.P. told both his uncle and his therapist about the incident in the shower. When O.B.

would get upset, she would bang her head on the wall or hit herself in the head saying “bad girl,

bad girl, bad girl.” The caseworker admitted Christopher and Brittany were caring for their new

baby, demonstrating their parenting skills towards him; however, Christopher and Brittany refuse

to take responsibility for the harm done to A.P. and O.B.

          Brittany’s attorney re-called Brittany to testify. Brittany testified she learned a lot from

the classes she had taken and admitted to three instances of physical violence in April and May of

2014 when she and Christopher were under the influence of methamphetamines. Brittany accepted

responsibility for the children’s removal but did not agree with the manner in which the allegations

were worded. Brittany explained she focuses more on A.P. during her one-hour visit with both

A.P. and O.B. because she then has an additional one-hour visit with O.B. at which Christopher

would be present. Brittany and Christopher continue to see a therapist and have learned to handle

stress.

                                               HEARSAY

          In her first issue, Brittany contends the trial court erred in allowing Mark to testify

regarding A.P.’s sexual abuse outcry.

          Section 104.006 of the Texas Family Code governs the admissibility of A.P.’s outcry and

provides a statement made by a child 12 years of age or younger describing alleged abuse against

the child is admissible if the trial court finds the time, content, and circumstances of the statement

provide sufficient indications of the statement’s reliability and the child testifies or is available to

testify at the proceeding. TEX. FAM. CODE ANN. § 104.006 (West 2014). We review the trial
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court’s ruling on the admissibility of evidence under an abuse of discretion standard. Brookshire

Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014); In re K.S., 76 S.W.3d 36, 42 (Tex. App.—

Amarillo 2002, no pet.). With regard to factual findings, a trial court only abuses its discretion if

the trial court could reasonably have reached only one decision and not the decision the trial court

reached. Walker v. Packer, 827 S.W.3d 833, 840 (Tex. 1982).

       Because the statement was admitted into evidence during a bench trial, the trial court was

not required to hold a separate hearing on the admissibility of the statement but could determine

its admissibility when the statement was offered into evidence. In re K.L., 91 S.W.3d 1, 17 (Tex.

App.—Fort Worth 2002, no pet.). Furthermore, the trial court was not required to expressly make

the findings required by section 104.006. Id. Instead, the trial court implicitly made the findings

in admitting the testimony. Id.

       The admissibility of the testimony was first discussed before the trial began. At that time,

the Department’s attorney informed the trial court A.P. could be made available to testify. Mark

subsequently testified he was assisting A.P. with a shower on May 16, 2015. As A.P. was drying

off and getting dressed, A.P. asked Mark why he never saw Mark naked. Mark responded it was

not appropriate for A.P. to see him naked. A.P. replied he used to shower with Christopher all the

time, and Christopher used to let him wash his penis. Given that A.P. made the statement after

showering and after he had resided with Mark for almost eighteen months during which he

developed a trust level with Mark, the trial court could reasonably have found that the time,

content, and circumstances provided sufficient indicia of the statement’s reliability. In addition,

the Department stated A.P. was available to testify. Accordingly, the trial court did not abuse its

discretion in admitting the testimony.




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                                  SUFFICIENCY OF THE EVIDENCE

       Brittany challenges the sufficiency of the evidence to support the trial court’s predicate

statutory findings under subsection 161.001(1)(b) of the Texas Family Code. In addition, Brittany

and Christopher both challenge the sufficiency of the evidence to support the trial court’s finding

that termination was in the children’s best interest.

                                       STANDARD OF REVIEW

       To terminate parental rights pursuant to section 161.001 of the Code, the Department has

the burden to prove: (1) one of the predicate grounds in subsection 161.001(1)(b); and (2) that

termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp.

2015); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear

and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree of

proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE § 101.007.

       In reviewing the legal sufficiency of the evidence to support the termination of parental

rights, the court must “look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.” In re J.F.C., 96 S.W.3d at 266. “[A] reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id.

“A corollary to this requirement is that a court should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.” Id.

       In reviewing the factual sufficiency of the evidence to support the termination of parental

rights, a court “must give due consideration to evidence that the factfinder could reasonably have

found to be clear and convincing.” Id. “If, in light of the entire record, the disputed evidence that
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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.” Id.

       A.      Predicate Findings

       With regard to Brittany, the trial court found Brittany: (1) knowingly placed or knowingly

allowed the children to remain in conditions or surroundings which endangered their physical or

emotional well-being; and (2) engaged in conduct or knowingly placed the children with a person

who engaged in conduct which endangered their physical or emotional well-being. The testimony

at trial established that Brittany exposed the children to domestic violence and drug use. A parent’s

exposure of a child to family violence and illegal drug use endangers a child’s physical or

emotional well-being and is sufficient to support the trial court’s predicate findings. See In re

D.M., 452 S.W.3d 462, 470 (Tex. App.—San Antonio 2014, no pet); In re C.J.O., 325 S.W.3d

261, 265 (Tex. App.—Eastland 2010, pet. denied); In re J.T.G., 121 S.W.3d 117, 125-26 (Tex.

App.—Fort Worth 2003, no pet.). Although Brittany argues she sent A.P. to live with her sister to

prevent him from being endangered, the evidence at trial established A.P. had already been

endangered by his exposure to the domestic violence and drug use before Brittany sent him away.

       B.      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). However, when the court considers factors

related to the best interest of the child, “the prompt and permanent placement of the child in a safe

environment is presumed to be in the child's best interest.” TEX. FAM. CODE ANN. § 263.307(a)

(West Supp. 2015). In determining whether a child’s parent is willing and able to provide the child

with a safe environment, the court should consider: (1) the child’s age and physical and mental

vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude,
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frequency, and circumstances of the harm to the child; (4) whether the child has been the victim

of repeated harm after the initial report and intervention by the Department; (5) whether the child

is fearful of living in or returning to the child’s home; (6) 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; (7) 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; (8) whether there is a history

of substance abuse by the child’s family or others who have access to the child’s home; (9) whether

the perpetrator of the harm to the child is identified; (10) 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; (11) the willingness and ability of the child’s family to

effect positive environmental and personal changes within a reasonable period of time; (12)

whether the child’s family demonstrates adequate parenting skills; and (13) whether an adequate

social support system consisting of an extended family and friends is available to the child. Id. at

§ 263.307(b).

        Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child;

(2) the present and future emotional and physical needs of the child; (3) the present and future

emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of the

home of the parent and the individuals seeking custody; (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. Id.



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       The foregoing factors are not exhaustive, and “[t]he absence of evidence about some of

[the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief

that termination is in the child’s best interest.” In re C.H., 89 S.W.3d at 27. “A best-interest

analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as the direct evidence.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013,

pet. denied). “A trier of fact may measure a parent’s future conduct by his past conduct and

determine whether termination of parental rights is in the child’s best interest.” Id.

       When the Department filed its petition, A.P. was five and O.B. was almost two. Based on

their ages, both were physically and mentally vulnerable. Although the children loved Brittany,

evidence was presented that A.P. was afraid of Christopher. In addition, the children were bonded

with their aunt and uncle.

       A.P. and O.B. had both been exposed to domestic violence and drug use. A.P. also made

statements regarding sexual abuse and testified Christopher hit him so hard he could not sit down.

After their removal, both A.P. and O.B. exhibited behaviors attributable to the violence and

conduct they had witnessed. A.P. recalled Christopher hitting Brittany and other acts of violence

which he used to excuse his own inappropriate behavior. O.B. would hit herself in the head and

call herself a bad girl. With regard to the future, Brittany was in denial about the past domestic

violence, and her testimony conflicted with her prior reporting of abusive acts by Christopher. In

addition, Dr. Pickard testified Christopher’s mental condition would require ongoing treatment

and medication; however, Christopher was no longer taking medication and had not seen a doctor

for his condition in four months.

       Although Brittany and Christopher had completed the specific actions listed in their service

plans, neither had met the goals. The caseworker testified Brittany and Christopher had not

demonstrated they would put the children’s needs ahead of their own. In addition, although
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Brittany and Christopher appeared to be adequately parenting their new baby, the trial judge had

reason to question their credibility, and Brittany continued to isolate herself from her family and

deny the prior domestic abuse. After Christopher’s monthly disability income increased to $3,187,

Brittany and Christopher were in a stable home; however, they still were providing no support for

A.P. or O.B.

       A.P. and O.B.’s aunt and uncle were providing a stable home for the children and planned

to adopt them. A.P.’s behavior had improved with regular weekly therapy.

       Having reviewed the record, we hold the evidence is sufficient to support the trial court’s

finding that termination was in the children’s best interest.

                                           CONCLUSION

       The order of the trial court is affirmed.

                                                      Sandee Bryan Marion, Chief Justice




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