                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00298-CV

           IN THE INTEREST OF R.M.V. AND E.V., CHILDREN



                           From the 335th District Court
                              Burleson County, Texas
                               Trial Court No. 25,785


                          MEMORANDUM OPINION


      Appellant R.V. appeals the trial court’s order terminating his parental rights to

his children, R.M.V. and E.V. We will affirm the trial court’s termination order.

      In a proceeding to terminate the parent-child relationship brought under section

161.001 of the Family Code, the Department of Family and Protective Services (the

Department) must establish by clear and convincing evidence two elements: (1) that the

parent did one or more acts or omissions enumerated under subsection (1) of section

161.001, termed a predicate violation; and (2) that termination is in the best interest of

the child. TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2011); Swate v. Swate, 72

S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that

both elements are established by clear and convincing evidence, and proof of one
element does not relieve the petitioner of the burden of proving the other. Holley v.

Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. Due process requires

the petitioner to justify termination of parental rights by “clear and convincing

evidence.” Spangler v. Texas Dep’t of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex.

App.—Waco 1998, no pet.). This standard is defined as “that measure or degree of

proof which 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.

        In this case, the jury was charged with terminating R.V.’s parental rights on the

grounds of Family Code subsection 161.001(1)(D) (knowingly placed or knowingly

allowed the child to remain in conditions or surroundings that endangered the child’s

physical or emotional well-being) and subsection 161.001(1)(E) (engaged in conduct or

knowingly placed the child with persons who engaged in conduct that endangered the

child’s physical or emotional well-being). See TEX. FAM. CODE ANN. § 161.001(1)(D, E).

The jury charge also stated that it must be proven by clear and convincing evidence that

termination of the parent-child relationship would be in the best interest of the children.

Based on this charge, the jury found that the parent-child relationship between R.V. and

R.M.V. and E.V. should be terminated. The trial court’s order made an affirmative

finding only on the subsection 161.001(1)(D) predicate violation.

        In three issues, R.V. complains that: (1) the evidence is factually insufficient to

support the finding against him on the subsection 161.001(1)(D) predicate violation; (2)

the evidence is factually insufficient to support the finding against him on the

subsection 161.001(1)(E) predicate violation; and (3) the evidence is factually insufficient

In the Interest of R.M.V. and E.V., Children                                          Page 2
to support the finding that termination of his parental rights was in the best interest of

the children.

                                               Preservation

        We initially address the Department’s assertion that R.V.’s factual-sufficiency

complaints are not preserved because he did not file a motion for new trial asserting

factual insufficiency. See TEX. R. CIV. P. 324(b)(2).

        Until very recently, our precedent had been that, in termination cases, we could

review a factual-sufficiency complaint on core issues (predicate violation or best

interest) even though it was not preserved in the trial court. See In re A.P., 42 S.W.3d

248, 254-56 (Tex. App.—Waco 2001, no pet.), disapproved on other grounds by In re J.F.C.,

96 S.W.3d 256, 267 n.39 (Tex. 2002); see also In re T.N.F., 205 S.W.3d 625, 630 n.2 (Tex.

App.—Waco 2006, pet. denied) (following A.P.). Then in In re A.M., ___ S.W.3d ___,

No. 10-12-00029-CV, 2012 WL 3242733 (Tex. App.—Waco Aug. 9, 2012, no pet. h.), we

overruled A.P. (and T.N.F.) and held that, in termination cases, to raise a factual-

sufficiency complaint on appeal, it must be preserved by including it in a motion for

new trial. Id. at *2. But we also stated in A.M. that our decision to overrule A.P. (and

T.N.F.) would only apply prospectively. Id. at *3.

        R.V. did not file a motion for new trial; therefore, he did not preserve his factual-

sufficiency complaints.           Nevertheless, we will review R.V.’s factual-sufficiency

complaints because R.V.’s opportunity to timely file a motion for new trial asserting

factual insufficiency expired before our decision in A.M.




In the Interest of R.M.V. and E.V., Children                                           Page 3
                                                Sufficiency

        The standard of review for factual sufficiency in termination cases is well-

established. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In a factual sufficiency review,

a court of appeals must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing. Id.

        [T]he inquiry must be “whether the evidence is such that a factfinder
        could reasonably form a firm belief or conviction about the truth of the
        State’s allegations.” A court of appeals should consider whether disputed
        evidence is such that a reasonable factfinder could not have resolved that
        disputed evidence in favor of its finding. 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.

J.F.C., 96 S.W.3d at 266-67 (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.

We view the evidence in a neutral light when reviewing for factual sufficiency.

        The Evidence

        Although unmarried, R.V. and C.M. had been together as a couple for

approximately six years at the time of trial. Their son R.M.V. was born in September

2006; their daughter E.V. was born in April 2008.1 R.V. testified that soon after E.V.’s

birth, in June 2008, a 200-pound pallet was dropped on his foot at work, breaking it in

about three places. R.V. was prescribed several medications for the injury, including

pain medication. R.V. stated that he was not on medication before his foot injury and

that since 2001 he had stopped drinking alcohol except for an occasional beer. After

being unable to work for six months because of the injury, R.V. went back to work for


        1   C.M. has two other children who live with their fathers.

In the Interest of R.M.V. and E.V., Children                                            Page 4
about four months before being laid off. R.V. then primarily stayed at home caring for

R.M.V. and E.V. while C.M. worked.

        C.M. testified that in June 2009, she was in a serious car accident that ruptured

her spleen, shattered her hip, and broke her pelvis in seven places. R.M.V. and E.V.

were at home with R.V. at the time. C.M. stated, “My right tire blew out, and I went

end over end.” C.M.’s injuries required two surgeries during which at least three plates

and sixteen to seventeen pins were placed in her body. C.M. was prescribed a variety of

medications following the surgeries, including pain medication. Several years before

the car accident, C.M. had also suffered a work-related injury that continued to cause

her pain and for which she was already prescribed pain medication.

        R.V. testified that while C.M. was in the hospital recovering from the accident, he

stayed by her side. During this time, R.M.V. and E.V. stayed with either his mother

Frances or his sister Robbie. When C.M. was released from the hospital, her injuries

were so significant that she and R.V. decided to live on property owned by R.V.’s

mother. They set up a hospital bed in a trailer once used as a restaurant, located on the

front of the property. Frances lived in a trailer behind the trailer where R.V., C.M., and

the children began living and was there during the day. Robbie lived in a trailer just off

to the side of the trailer where R.V. and C.M. began living. A sliding-glass door divided

Robbie’s living area from R.V. and C.M.’s living area.

        R.V. testified that one evening the family was sitting down at the table eating

dinner when C.M. started to go to sleep. R.V. took C.M. and put her in bed to let her

sleep while they finished dinner. After dinner, the children then lay down, and R.V.

In the Interest of R.M.V. and E.V., Children                                         Page 5
went to sleep as well. Frances then came in and found R.V. and C.M. sleeping. Frances

testified that she was unable to wake R.V. or C.M., it startled her, and she called an

ambulance. R.V. stated that Frances performed chest compressions on C.M. until an

ambulance arrived.          C.M. and R.V. were both taken to the hospital in separate

ambulances. R.V. testified that he was awake and “fine” by the time he got to the

hospital, so they let him go. Frances testified that the ambulance driver told her that

R.V. was just “hard asleep.” C.M., however, remained in the hospital for several days.

        Tiffany Herbrich, who had been an investigator for the Department, testified

that, on July 20, 2009, the Department received allegations of neglectful supervision and

physical neglect of R.M.V. and E.V. by their parents. The specific allegations were that

the car accident the month before had been caused by C.M. “being high on drugs” and

that the parents had “overdosed for the second time.” The allegations also included

that the home had broken windows, that drugs were accessible to the children, and that

human and animal feces were in the home. An on-call investigator was originally

assigned to the case and responded. The investigator put into place a “safety plan.”

The safety plan required either Frances or Robbie to supervise all contact between the

children and their parents.

        Herbrich testified that she was assigned to the case a couple of days later. She

met with the family at their residence. R.V. and C.M. told her that they both had

suffered accidental overdoses. They told her that C.M. had overdosed because she had

mixed medications prescribed by two different doctors. C.M. testified that she had

taken Oxycontin that day for pain but then ran out of the medication and took a few

In the Interest of R.M.V. and E.V., Children                                       Page 6
Vicodin pills. Herbrich testified that R.V. and C.M. told her that R.V. had overdosed

because he had taken some of C.M.’s medication after being in pain. R.V. testified that

he took his own prescription medication earlier in the day but that he ran out, so he

took one of C.M.’s prescription pills. R.V. admitted that he should not have taken

C.M.’s medication. Herbrich testified that R.V. and C.M. also told her about the car

accident that C.M. was involved in the month before. C.M. said that it was just an

accident and not any sort of suicide attempt. R.V. also admitted to Herbrich that he had

suffered from some recent depression because he had been out of work for quite a

while.

         After Herbrich’s visit with the family, the Department set up a family team

meeting to try to figure out what services the family might need. At this family team

meeting, both R.V. and C.M. agreed to drug testing and voluntarily signed medical

releases for the different doctors that they were seeing so that the Department could

send the medical records to its substance-abuse specialist and nurse consultant to

determine if there was any prescription pain medication abuse. R.V. also agreed to

contact the VA and get help for his depression.

         Herbrich then investigated the allegations by contacting C.M.’s doctors.

Herbrich discovered that on July 15, C.M. had called one of her doctors, reported that

her medication had been stolen, and asked for more. The doctor told C.M. that he

would need a police statement as proof that the medication had been stolen, but C.M.

never provided the police statement to him.       The doctor also told Herbrich that

Oxycontin and hydrocodone are commonly prescribed together and were not a “fatal

In the Interest of R.M.V. and E.V., Children                                      Page 7
mix” as claimed by C.M. C.M. testified, however, that her Oxycontin had been stolen,

and when she talked to her doctor about it, he prescribed her a “lower amount” and

then a “lower amount to it” until he was able to take her off of the medication.

Furthermore, Herbrich testified that, in September 2009, the nurse consultant who had

reviewed the medical records of the parents reported to Herbrich that she was not able

to find any concrete evidence that the parents were abusing their pain medication and

that she had no concerns that the parents were drug seeking or doctor shopping. The

nurse consultant stated specifically that C.M.’s injuries from the car accident were very

serious and very painful. It appeared that the amounts of pain medication C.M. was

being prescribed were consistent with her injuries, and it did not appear that C.M. was

trying to kill herself on the night that both R.V. and C.M. had to be taken to the hospital,

but it rather was an accidental overdose from mixing two pain medications from two

different doctors.

        Herbrich also testified that it was never proven that C.M. was under the

influence of some sort of drugs during the car accident, and C.M. was not cited or

arrested for anything involving the car accident. Moreover, Herbrich stated that from

her visits, she had never had any concerns as far as the home. She stated, “I have ruled

out physical neglect each time, meaning I haven’t found the broken glass, animal feces,

anything of that nature, when I’ve gone to the home.” The Department’s case was thus

closed on September 24, 2009.




In the Interest of R.M.V. and E.V., Children                                          Page 8
        Herbrich testified that four days later on September 28, 2009, the Department

received more allegations regarding R.V.’s and C.M.’s care of their children, including

the following:

       Law enforcement had been called out to the home after C.M. threw R.M.V.
        against the wall because she ran out of drugs.

       “A bunch of the family’s dope fiend friends were at home.”

       Law enforcement had been called out to the home because C.M. got upset when
        someone was trying to hot wire a car outside the home, and she went outside
        and fired gunshots. The children were awake when this occurred, and R.V. was
        inside the home, too high to get up.

       R.V. became angry at E.V. for running around while they were in public, so he
        “yanked her up,” bruising her arm, and “beat her bottom repeatedly.”

       Both R.V. and C.M. abuse prescription drugs on a daily basis, and C.M. obtains
        prescriptions from six different doctors in Houston.

       There were several dogs and cats that went inside the home, resulting in animal
        feces on the floor, which R.M.V. picked up.

        Herbrich testified that she investigated these new allegations. She went back out

to R.V. and C.M.’s home to meet with the family. Herbrich stated that she knocked on

the door and could hear them inside, but they were saying to just go away. Herbrich

left and called law enforcement. When she went back to the home with an investigator

from the sheriff’s department, R.V. and C.M. let her inside. Herbrich explained to R.V.

and C.M. that although the Department had just closed their previous case, several new

allegations had been made. Herbrich physically examined both of the children, but she

found no marks or bruises on them. Herbrich stated that she also had no concerns

about the house. Herbrich did not plan to remove R.M.V. and E.V. at that point.


In the Interest of R.M.V. and E.V., Children                                       Page 9
        Herbrich set up another family team meeting so they could all sit down at the

CPS office and figure out what had happened. Herbrich testified that R.V. and C.M.

said that law enforcement had come out to their home two times since the Department

had closed its case. First, regarding the allegation that law enforcement responded to

R.M.V. being thrown against the wall, C.M. denied harming R.M.V. and told Herbrich

that she had only picked R.M.V. up and “lightly tossed him onto the crib.” When C.M.

demonstrated for Herbrich how she had done that, Herbrich explained to her that it

was inappropriate but that it did not appear to be abuse.

        R.V. explained the incident further, stating that Robbie, Robbie’s daughter

Heather, and C.M. were all arguing. Robbie got angry, said “I’m sick of all this,” kicked

the sliding-glass door, and, without intending to, broke the glass. When the glass

shattered, Robbie exclaimed, “My God,” and backed away to keep from getting cut.

R.M.V., having heard the noise, then started walking toward Robbie to check on her.

That is when C.M. grabbed R.M.V. and picked him up to keep him away from the glass.

C.M. testified that Heather then ran off and called the police. Herbrich acknowledged

that when law enforcement went out to the home that night, they did not find any

marks or bruises on R.M.V. or any other evidence of abuse and that no charges were

filed against C.M. for assaulting or injuring R.M.V.

        Herbrich then testified that, regarding the allegation that law enforcement had

been called out to the home because C.M. fired a gunshot, C.M. stated that she had fired

a blank shot up in the air. C.M. testified that after R.M.V.’s birthday party, one of her

girlfriends and her girlfriend’s children decided to spend the night. That night, R.V.,

In the Interest of R.M.V. and E.V., Children                                      Page 10
C.M., and the children were asleep in the house when she woke up to “a lot of

screaming and hollering outside.” When she got up and went outside, she saw a man

named Anthony Harwell ripping the dash out of her girlfriend’s car and Robbie,

Heather, and the girlfriend screaming for him to stop and just leave. Harwell was

trying to hot wire the car. C.M. stated that she told Harwell that he needed to leave the

property. Harwell refused. C.M. then said, “[I]f I have to, I know I can make you leave

this property.” Harwell replied, “I don’t have to leave this property. You can’t make

me.” C.M. then said, “Yes, I can,” went into Frances’s trailer, got her pistol that had

blank rounds in it, took the gun outside, and fired it one time up into the air. Harwell

took off running while C.M. waited for the police to arrive. When the police arrived,

they took the gun and informed her that they would be arresting Harwell because of

other problems they had had with him. R.V. added that he and the children were inside

the home sleeping when he heard the gun fire. R.V. stated that he opened the door,

looked out, and asked what was going on. Someone replied that C.M. had just fired a

gun off in the air. He then decided that he was going to stay out of it and went back

inside.

          Herbrich testified that she also went to speak with Harwell at the jail to get his

side of the story. Harwell did not take responsibility and told Herbrich that C.M. had

asked her to hot wire the girlfriend’s car. Herbrich also spoke to the officer who

responded that night, and he indicated that C.M. was slurring her speech, that he could

not understand her, and that she appeared to be under the influence of something.

Herbrich acknowledged, however, that C.M. was not arrested for anything that night.

In the Interest of R.M.V. and E.V., Children                                         Page 11
        R.V. and C.M. both testified that Heather admitted to them that she was

responsible for the several allegations the Department received just after it had closed

its previous case. The calls were made by friends of hers. C.M. testified that Heather

told her she was sorry that she had done it and did not mean it. Herbrich testified that

two of the allegations also came from Harwell’s mother and grandmother. Herbrich

explained that they do not know or investigate the motivation of those who make the

allegations before opening an investigation.

        Herbrich testified that the Department had a Family-Based Safety Services (FBSS)

worker present at the family team meeting, and the Department wanted the family to

go to FBSS. The Department offered R.V. and C.M. the services, such as parenting

classes, counseling, and drug treatment. Herbrich then stated that with FBSS, there is

usually a “safety plan” in which the children are supervised by someone else. In the

previous case, Frances and Robbie had supervised the contact with the parents;

however, because law enforcement had been called out to the house twice since the

previous case had been closed, and Frances and Robbie had been in the home, the

Department did not feel like any of the adults who had been used before were

appropriate to supervise the children. Thus, the Department asked R.V. and C.M. to

provide names of individuals with whom the children could be placed other than

Frances or Robbie. At that point, R.V. said, “I will either kill myself, or I’ll go to prison

for killing someone else if you take my kids.” The Department then decided to remove

the children from R.V. and C.M. Herbrich stated that R.V.’s statement was deemed to

be a threat or risk to both him as well as the children. The Department removed R.M.V.

In the Interest of R.M.V. and E.V., Children                                          Page 12
and E.V. from R.V. and C.M. on October 2, 2009, and they were placed with a foster

family.

        Kristen Weaver became the caseworker in December 2009.2 Weaver testified that

the family plan of service had been put into place when she was assigned the case, but

there had been a delay in getting some of the services started, so she worked to get

those set up. The permanency goal at that time was family reunification.

        In March 2010, Paul Johnson, a licensed professional counselor, began working

with R.V. and C.M. Johnson testified that he saw C.M. about three sessions per month.

He saw R.V. at least one session per month and, depending on R.V.’s work schedule,

two times per month. R.V. testified that at some point, he began working on oil rigs

where he would work for two weeks straight before returning home for a week. He

earned $21 per hour working on the rigs, which was more than any local job offered.

        Johnson testified that in counseling R.V. and C.M., he wanted to first identify the

difficulties that got them involved with CPS. Johnson then wanted to look at the

relationship dynamics between R.V. and C.M. and also spend some time talking about

parenting strategies, stress management, and substance abuse. The goal was that the

parents would develop improved mental health and behavioral decisions.

        Regarding C.M., Johnson testified that they talked about parenting and setting

limits. C.M. has a chronic pain condition due to the car accident; therefore, Johnson

worked to help her manage some of the symptoms that are related to that physical




        2   There had been a different caseworker in the interim, but she did not testify.

In the Interest of R.M.V. and E.V., Children                                                 Page 13
health condition. Johnson and C.M. also discussed communication strategies with R.V.

and how to make good decisions with respect to social contacts.

        Regarding R.V., Johnson testified that they initially focused on R.V.’s relationship

issues, specifically how he communicated with C.M. Johnson said that R.V. seemed to

be “a pretty patient person,” but he had a tendency to get easily exasperated and

frustrated with C.M. Johnson also talked with R.V. about parenting, his connectedness

to his children, and his decision-making related to that. R.V. seemed to be someone

who was very caring and committed to his children. He was responsive to suggestions

that Johnson made regarding life issues in general, as well as parenting specifically.

R.V.’s parenting approach and views were appropriate. Johnson did have concerns

about the long hours that R.V. was working and the fact that R.V. reported that he was

having sleep problems because of that. Johnson stated that he thought R.V. had more

difficulty with sleep than most of the people that he had encountered even though

Johnson had worked with people who worked in the oilfield before.                  Johnson

acknowledged that when someone has difficulty sleeping, it is possible that he or she

suffers from exhaustion, which could lead to passing out or falling asleep.

        Weaver testified that, in addition to the counseling, R.V. and C.M. completed

parenting classes in satisfaction of the family service plan. R.V. and C.M. also took

multiple drug tests in several different forms. All but one of the tests was negative, but

Weaver stated that she had an issue with the tests. The service plan required C.M. and

R.V. to keep up with all their prescription medications, to take the medications

according to the recommended amount, and to inform the caseworker of any changes in

In the Interest of R.M.V. and E.V., Children                                         Page 14
medication. Weaver stated that she did not understand how R.V. and C.M. could be

taking their prescription medications as prescribed and still have negative screenings.

        On the other hand, Weaver also stated that at times throughout the case, R.V.

told her that he had stopped taking his medication, and Weaver admitted that it was

unclear to her when he was and was not on his medication. Furthermore, Weaver

acknowledged that it would have been an appropriate decision by R.V. if he decided to

only take his pain medication when he was hurting. When R.V. was questioned about

the drug tests, he testified that he could not explain why the drug screenings did not

show positive for any of the medications he was supposed to be taking; however, he

was not taking his medications daily because he was working with a lot of dangerous

equipment on the oil rigs.

        Weaver testified that she also observed many visits between the parents and

children during this time. She stated that the children were healthy kids who were

pleased to be with their parents. The interaction between the parents and children was

always appropriate.          By September 2010, the family had begun having some

unsupervised visitation. Weaver felt like there had been progress made. Johnson also

testified that although it was not as rapidly as he would have liked, he also felt like R.V.

and C.M. were making progress. In early October 2010, R.M.V. and E.V. were thus

returned to R.V. and C.M. under a monitored return that was to last six months.

        Johnson testified that the family was definitely moving forward when the

children were returned. The parents were structuring things in terms of how time was

spent with the kids and how the tasks were divided up in the home. The parents were

In the Interest of R.M.V. and E.V., Children                                         Page 15
communicating better with one another. C.M. in particular was implementing things

that Johnson had suggested.

        Johnson stated that he did have some family counseling sessions with C.M. and

the two children together. At those times, R.V. was not available because he was out of

town at work. One of the last sessions he had, however, was with R.V. and R.M.V.

together. Johnson stated that there seemed like a “pretty comfortable attachment”

between R.V. and R.M.V. R.M.V. seemed connected to his dad and “revved up” about

being with him. That showed to Johnson that the relationship mattered to R.M.V.

Johnson stated that, based on that counseling session, it would not be in R.M.V.’s best

interests to terminate the relationship. But Johnson did say that although he never saw

any actual dangers when the parents and children were in counseling together, there

was an issue with the parents’ ability to anticipate dangers. Johnson explained:

                Well, even within the context of my office, for example, that there
        might be dangers of kids climbing on things and kids playing with
        particular toys, kids throwing things, those sorts of things, that -- kind of
        failing to see what the end result of that might be.
                And so you can take something like that and magnify it across, you
        know, a household with many more rooms and many more things to get
        into. So I guess failure to anticipate dangers.

Johnson stated that R.V. and C.M. were just beginning to improve with this issue. They

were aware of the seriousness of the situation. But Johnson also testified that it was fair

to say that in their March to December 2010 counseling sessions, R.V. and C.M. should

have had the time to recognize and begin resolving the problems in their lifestyle that

would prevent another removal of the children.




In the Interest of R.M.V. and E.V., Children                                            Page 16
        Weaver testified that she made at least ten visits to the home after the children

were returned, some announced and some unannounced. She stated that there were

some concerns during the visits. On one occasion, she was able to have about a thirty-

second conversation with R.M.V. outside before R.V. opened the door, saw who was

there, and allowed her inside. Weaver felt it was unsafe for R.M.V. to be unsupervised

for that length of time because someone could have taken him and left.           Weaver

acknowledged, however, that she could not be certain that R.V. was not watching from

inside. Weaver also stated that during one visit or possibly the same visit, both of the

children were outside playing in the front yard with socks on but no shoes. There was a

fence around the yard and toys for the children to play on inside the fence, but Weaver

did not think it was a safe situation for R.V. to be inside while the children were

outside.    There was also a morning when Weaver visited, and the children were

“filthy.” On another occasion, C.M. was at the home but the children were not. The

children were at Frances’s home, and one of the stipulations of the monitored return

was that the children were not to be unsupervised with Frances.

        Evelyn Faye Lane, the court-appointed special advocate (CASA) and guardian ad

litem for R.M.V. and E.V., testified that she also visited with the parents and children

together four times during the monitored return. She also had concerns during her

visits. R.M.V. made negative comments more than once about how his parents were

getting along. R.M.V. was very upset when C.M. was not there. Several times, he said,

“She’s not here. She’s not coming back. Mommy’s not here. She’s not coming back.”

During one home visit, R.M.V. had a cut and bruise around his eye. When she asked

In the Interest of R.M.V. and E.V., Children                                      Page 17
him how he had gotten hurt, he said that he could not talk to her about it. Lane also

stated that she smelled alcohol on C.M.’s breath more than once. C.M. denied having

been drinking or having alcohol on her breath when Lane or Weaver made home visits.

        Tim Davis, a sheriff’s deputy, testified that, on December 15, 2010, sometime

between 9:00 and 10:00 p.m., he received a radio transmission that two people were

“passed out” in a car in the parking lot of Suzy’s Bar and Grill. When Davis arrived at

the scene, he saw a black four-door car parked in front of the establishment and

someone outside, pointing to the car, saying, “That’s it.” Suzy’s Bar and Grill was open

at that time, and there were other vehicles in the parking lot. Davis positioned his

vehicle behind the black car and activated his in-car video.3 Davis then approached the

black car and found R.V. and C.M. “passed out in the front seat of the car” and R.M.V.

and E.V. “up and about in the back seat.” The car was not running, the keys were not in

the ignition, and the windows were closed.

        Davis initially got the two children out of the back seat of the car. The children

were not restrained. He could not recall if there were any children’s safety seats in the

vehicle. Davis stated that the children did not appear to be in any distress.

        When Davis opened the door, the light came on inside the car, but it had no

effect on either parent. Davis then called out to R.V., “Sir, can you hear me? I need you

to go ahead and let me see your hands.” When R.V. did not respond, Davis went to the

passenger’s side and addressed C.M.                She did not respond either.   Davis had to

physically shake C.M. in the passenger’s seat to get her to wake up. DPS Trooper

        3   The video was not admitted into evidence.

In the Interest of R.M.V. and E.V., Children                                           Page 18
Insminger had arrived and also had to physically shake R.V. to get him to wake up.

Frances testified that R.V. is deaf in one ear and that he “sleeps hard.” Davis was not

aware that R.V. was deaf in one ear.

        After waking C.M., Davis told her to get out of the vehicle. She attempted to get

out once, but he had to help her out and stand her up. After he stood her up, he let her

go, and she almost fell down several times while he was trying to get her identification.

Davis could tell that C.M. was “fairly incoherent.” Her speech was slurred. She could

not answer his questions directly or in a proper manner. He shined his flashlight into

her eyes, and her pupils did not react like they were supposed to. “They were very

pinpoint.” He did not smell any kind of alcoholic odor emitting from her, but he knew

she was impaired by something. R.V. was also assisted out of the vehicle by Trooper

Insminger. Davis stated that the degree of impairment between R.V. and C.M. was

“[q]uite similar.” Both R.V. and C.M. were placed in Trooper Insminger’s vehicle and

taken to the jail. The children were released to either their grandmother or their aunt.

        Davis testified that there was trash everywhere in the vehicle. There was food

that had just been picked up from Suzy’s Bar and Grill in the backseat with the children.

Davis located a purse in the passenger’s side of the vehicle and saw an unlabeled

medicine bottle in it. The bottle was completely full with different types of pills, later

determined to be Xanax, an antianxiety pill, and hydrocodone. Trooper Insminger

found a medicine bottle in R.V.’s pocket with the same several medicines in it. All the

identifiers had been scratched off the bottle in R.V.’s pocket except for the name of the

prescribed medication. Davis filed a complaint for possession of controlled substance,

In the Interest of R.M.V. and E.V., Children                                        Page 19
penalty group 3, against C.M. and two complaints (possession of controlled substance,

penalty group 3, and possession of controlled substance, penalty group 4) against R.V.

Davis did not investigate whether C.M. or R.V. actually had legitimate prescriptions for

these drugs.

        Weaver testified that she, her supervisor, and the CASA supervisor visited with

R.V. and C.M. at the jail. They asked the parents what happened that night, and R.V.

told them that he fell asleep in the front seat of the car. Weaver stated, however, that

the officers did not think that R.V. was just asleep in the car that night; he may have

been under the influence of something. R.V. testified at trial that earlier on that day, he

had taken a pain pill because his back was hurting from riding in a car for eight hours.

He also stated that he took a Tylenol PM before going to Suzy’s Bar and Grill because

he had a headache and had driven all day that day.

        Both R.V. and C.M. were indicted for abandoning or endangering a child based

on the incident at Suzy’s Bar and Grill. When R.V. was asked if he had a drug problem

during the time that the removals took place, R.V. replied, “I think it probably was

starting to progress that way, yes.” Also, when R.V. was asked if the charge in the

indictment was for abandoning or endangering a child, the same as C.M., R.V. replied,

“Yes.” He then stated, “In answer to that, I’ve been advised by my attorney, since the

case has not been issued, that I need to take the Fifth on all questions pertaining to

that.” C.M. also pleaded the Fifth Amendment when asked several questions about the

incident at Suzy’s Bar and Grill.




In the Interest of R.M.V. and E.V., Children                                        Page 20
         Weaver, her supervisor, and the CASA supervisor told R.V. and C.M. that the

Department’s position had changed and that it was now going to go forward with

termination. The children were removed for the second time and placed back in the

same foster home. When the children were being removed, R.M.V. was very reluctant

to leave and very upset for about an hour or two afterward but then readjusted. The

foster mother reported to Weaver that E.V. had been potty-trained when she had left for

the monitored return, but when she was brought back to the foster home, diapers were

sent for her. At the time of trial, E.V. was still struggling with being potty-trained

again.

         R.V. denied that his mother Frances ever monitored his medication, but C.M.

testified that after the children were removed the first time, Frances monitored their

medication when it needed to be. C.M. stated, “And, you know, we thought we could

do it ourselves, and obviously we messed up on it, and that’s why the children got

removed the second time.” Frances testified that she had taken the pills and put them

up so that they would not be left on the bedside table where the children could get them

but that R.V. and C.M. knew where the pills were and could have gotten them anytime.

When R.V. was asked what has now changed with him so that he will not have another

relapse, he replied that he had not taken medication in almost six months.

         Subsection 161.001(1)(D) Predicate Violation

         Subsection 161.001(1)(D) provides that the court may order termination of the

parent-child relationship if the court finds by clear and convincing evidence that the

parent has “knowingly placed or knowingly allowed the child to remain in conditions

In the Interest of R.M.V. and E.V., Children                                     Page 21
or surroundings which endanger the physical or emotional well-being of the child.”

TEX. FAM. CODE ANN. § 161.001(1)(D).

        To endanger means to expose to loss or injury, to jeopardize. Texas Dep’t Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269

(Tex. 1996). The specific danger to a child’s physical or emotional well-being need not

be established as an independent proposition, but it may be inferred from parental

misconduct. See Boyd, 727 S.W.2d at 533.

        When termination of parental rights is based on section D, the
        endangerment analysis focuses on the evidence of the child’s physical
        environment, although the environment produced by the conduct of the
        parents bears on the determination of whether the child’s surroundings
        threaten his well-being. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—
        Houston [14th Dist.] 2005, no pet.). Section D permits termination if the
        petitioner proves parental conduct caused a child to be placed or remain
        in an endangering environment. In re R.D., 955 S.W.2d 364, 367 (Tex.
        App.—San Antonio 1997, pet. denied).

               It is not necessary that the parent’s conduct be directed towards the
        child or that the child actually be injured; rather, a child is endangered
        when the environment creates a potential for danger which the parent is
        aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that
        demonstrates awareness of an endangering environment is sufficient to
        show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex.
        App.—Texarkana 2000, no pet.) (“[I]t is not necessary for [the mother] to
        have had certain knowledge that one of the [sexual molestation] offenses
        actually occurred; it is sufficient that she was aware of the potential for
        danger to the children and disregarded that risk by ... leaving the children
        in that environment.”)). In considering whether to terminate parental
        rights, the court may look at parental conduct both before and after the
        birth of the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston
        [1st Dist.] 1997, no pet.). Section D permits termination based upon only a
        single act or omission. In re R.D., 955 S.W.2d at 367.




In the Interest of R.M.V. and E.V., Children                                           Page 22
Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied);

see also In re C.W., Jr., No. 14-09-00306, 2009 WL 4694946, at *6 (Tex. App.—Houston

[14th Dist.] 2010, no pet.).

        R.V. argues that the verdict was contrary to the overwhelming weight of the

evidence because the Department did not even argue to the jury that the conditions in

which the children lived endangered them. To support this proposition, R.V. points out

that the Department’s own evidence established that there were no concerns with R.V.’s

and C.M.’s residence. But even though the focus of subsection 161.001(1)(D) is on the

child’s environment, and we recognize that the Department did present testimony that

there were no concerns with the home itself, courts have held that parental conduct

itself may produce an endangering environment. See In re J.T.G., 121 S.W.3d 117, 125

(Tex. App.—Fort Worth 2003, no pet.) (“Conduct of a parent in the home can create an

environment that endangers the physical and emotional well-being of a child.”); see also

In re D.R.J., No. 07-08-0410-CV, 2009 WL 1953402, at *3 (Tex. App.—Amarillo Jul. 8,

2009, pet. denied) (mem. op.; “Although the focus of subsection (D) is on the child’s

living environment and not on the parent’s conduct, parental conduct may produce an

endangering ‘environment.’”).

        In this case, R.V. testified that in July 2009, he accidentally overdosed when he

took one of C.M.’s prescription pills after he had taken one of his own prescription

medications earlier in the day. R.V. admitted that he should not have done this, calling

it “stupid.” In December 2010, however, the young children were left unsupervised in

the backseat of a car in a restaurant parking lot when R.V. and C.M. once again became

In the Interest of R.M.V. and E.V., Children                                      Page 23
impaired, and there is ample evidence that R.V.’s impairment on this occasion was

again caused by his knowing misuse of medication. Notably, Trooper Insminger found

a medicine bottle in R.V.’s pocket with prescription medications in it.       And when

testifying about his indictment for abandoning or endangering a child, R.V. stated, “In

answer to that, I’ve been advised by my attorney, since the case has not been issued,

that I need to take the Fifth on all questions pertaining to that.” See In re C.J.F., 134

S.W.3d 343, 352-53 (Tex. App.—Amarillo 2003, pet. denied) (“A jury may draw an

adverse inference against a party who pleads the Fifth Amendment.”).

        We thus hold that the evidence is factually sufficient to allow the jury to form a

firm belief or conviction that, under subsection 161.001(1)(D), R.V. knowingly placed or

knowingly allowed R.M.V. and E.V. to remain in conditions or surroundings that

endangered their physical or emotional well-beings. We overrule R.V.’s first issue.

Having overruled R.V.’s first issue, we need not reach his second issue. In re S.N., 272

S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.) (“If multiple predicate grounds are

found by the trial court, we will affirm based on any one ground because only one is

necessary for termination of parental rights.”).

        Best Interest of the Child

        In determining the best interest of a child, a number of factors have been

considered, including (1) the desires of the child; (2) the emotional and physical needs

of the child now and in the future; (3) the emotional and physical danger to the child

now and in the future; (4) the parental abilities of the individuals seeking custody; (5)

the programs available to assist these individuals; (6) the plans for the child by these

In the Interest of R.M.V. and E.V., Children                                       Page 24
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may

indicate the existing parent-child relationship is not a proper one; and (9) any excuse for

the acts or omissions of the parent.           Holley, 544 S.W.2d at 371-72. This list is not

exhaustive, but simply indicates factors that have been or could be pertinent. Id.

        The Holley factors focus on the best interest of the child, not the best interest of

the parent. Dupree v. Texas Dept. of Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—

Dallas 1995, no writ). The goal of establishing a stable permanent home for a child is a

compelling state interest. Id. at 87.

        Desires of the child: There is no direct evidence of R.M.V.’s and E.V.’s desires. As

R.V. points out in his brief, Weaver testified that she believes the children’s desires

should not be a factor in determining their best interests. She did not ask R.M.V. and

E.V. if they wanted to go home because “a four-year-old and a three-year-old aren’t

capable of making the best decisions for themselves, which is why there’s an agency in

place like this, to help make those decisions for them.”

        The circumstantial evidence regarding the desires of the children is conflicting.

There is evidence that the children are bonded to their parents as well as to the foster

home. Thus, this factor weighs neither in favor of nor against the best-interest finding.

        The child’s emotional and physical needs now and in the future and the emotional and

physical danger to the child: Evidence of past misconduct or neglect can be used to

measure a parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex.

App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco

1992, no writ) (“Past is often prologue.”). Often, the best interest of the child is infused

In the Interest of R.M.V. and E.V., Children                                          Page 25
with the statutory offensive behavior. In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.—

Fort Worth 2003, no pet.). Parental knowledge of the occurrence of an actual offense

that endangers a child’s emotional or physical well-being is not necessary; it is sufficient

that the parent was aware of the potential for danger and disregarded the risk. In re

R.G., 61 S.W.3d 661, 667-68 (Tex. App.—Waco 2001, no pet.), disapproved of on other

grounds by J.F.C., 96 S.W.3d 256.

        We discussed the danger to the children above. Weaver also testified that she

believed termination is in the best interests of the children because the parents had an

incident that was very similar to the one that they had back in July 2009. She stated that

although the children were not injured, the Department had concerns that the parents

were not taking their medications properly, resulting in them passing out, overdosing,

or being incoherent with two young children present. At Suzy’s Bar and Grill, the

children could have gotten out of the car or someone could have gotten in the car and

gotten them.

        The evidence on these factors, including the statutory offensive behavior, weighs

in favor of the best-interest finding.

        Parental abilities and available programs: R.V. states that his abilities were shown

by the condition of the children before removal; the opinion of the counselor that he

was “patient,” “caring” and committed to his children and had an appropriate attitude;

and the fact that the Department did not claim that either his or C.M.’s interactions with

the children were inappropriate. But as the State points out, there is evidence that the

children regressed in their behavior during the monitored return to R.V. and C.M. The

In the Interest of R.M.V. and E.V., Children                                         Page 26
foster mother reported that E.V. had been potty-trained when she had left for the

monitored return, but when she was brought back to the foster home, diapers were sent

for her, and, at the time of trial, E.V. was still struggling to be potty-trained again.

        Johnson also testified that although R.V. and C.M. were attending counseling

and making progress, it was not as rapidly as he would have liked. Johnson said that

there was an issue with the parents’ ability to anticipate dangers. This issue seems

apparent in the circumstances Weaver encountered in her visits to the home during the

monitored return where on at least one occasion, the young children were outside

unsupervised. On another occasion, the children were “filthy.” And the incident at

Suzy’s Bar and Grill that led to the second removal reflected on R.V.’s parental ability.

        The evidence on these factors weighs in favor of the best-interest finding.

        Plans for child and stability of the home:   The   need   for   permanence         is   a

paramount consideration for a child’s present and future physical and emotional needs.

In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc). The

goal of establishing a stable permanent home for a child is a compelling state interest.

Dupree, 907 S.W.2d at 87.

        The Department’s plans for the children were to place the children for adoption.

R.V.’s plans were for the children to finish school. He hoped to change jobs for the

children so that he would be home more often. He planned to buy a new house once he

has paid off all the bills he has now, and he pointed to the extended family that is

involved in his life.

        The jury was free, however, to reject these assertions of future stability,

In the Interest of R.M.V. and E.V., Children                                               Page 27
particularly given R.V.’s history of instability. See In re B.S.W., No. 14-04-00496-CV,

2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem.

op.) (“Ms. Woods has failed to show that she is stable enough to parent B.S.W. for any

prolonged period. The trial court was entitled to determine that this pattern would

likely continue and that permanency could only be achieved through termination and

adoption.”). R.V. has not had a valid driver’s license since 2003 although he testified

that he would take the children to the hospital even if it meant driving illegally. And

there is evidence that R.V.’s inability to manage his medication resulted in the children

being removed from his home, returned after a period of time, and then removed again.

        The evidence on these factors thus weighs in favor of the best-interest finding.

        Acts or omissions and any excuses for them: The Department points again to R.V.’s

misuse of his medications. The evidence on these factors weighs in favor of the best-

interest finding.

        In conclusion, viewing all the evidence in a neutral light in relation to the Holley

factors, we hold that the jury could have reasonably formed a firm belief or conviction

that termination was in R.M.V.’s and E.V.’s best interests. Accordingly, the evidence is

factually sufficient on the best-interest finding. We overrule R.V.’s third issue.

        We affirm the trial court’s termination order.




                                                 REX D. DAVIS
                                                 Justice


In the Interest of R.M.V. and E.V., Children                                         Page 28
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed October 4, 2012
[CV06]

*      (Chief Justice Gray concurs in the judgment to the extent that it affirms the trial
court’s judgment. He joins no part or portion of the Court’s opinion. He notes,
however, that the standard of review in a case wherein the burden of proof at trial is
clear and convincing, in particular appeals of the termination of parental rights, does
not involve a review of the evidence in a “neutral light” as expressed on page 4 of the
opinion and in the conclusion as expressed on page 28 of the opinion. The Texas
Supreme Court was very specific in expressing not only the standard of review, but in
also expressly rejecting all other articulations, when it stated: “But in the interest of
uniform decision-making, we reject any articulation of the standard that varies from the
standard we announce today.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). I am uncertain
why this Court would express the standard of review in any language other than that of
the Texas Supreme Court when it stated: “We hold that the appellate standard for
reviewing termination findings is whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.”
Id. at 25. In the dissenting opinion in In re M.A.H., Chief Justice Gray explains the
distinction between the Supreme Court’s articulation of legal and factual sufficiency
review in this type of appeal and no useful purpose is served by reexamining that issue
or trying to change or rearticulate the standard in this appeal. In re M.A.H., No 10-02-
00234-CV, 2004 Tex. App. LEXIS 6913, *15-18 (Tex. App.—Waco, July 28, 2004, no pet.)
(Gray, C.J., dissenting). And, moreover, appellant failed to preserve any of the three
issues raised on appeal. See In re A.M., __ S. W. 3d __, No. 10-12-00029-CV, 2012 Tex.
App. LEXIS 6705, *21-24 (Tex. App.—Waco, Aug. 9, 2012, no pet. h.)(Gray, C.J.,
concurring). Because none of appellant’s issues are preserved for our review, he would
overrule each issue and, therefore, concurs in affirming the trial court’s judgment.)




In the Interest of R.M.V. and E.V., Children                                       Page 29
