Affirmed and Memorandum Opinion filed April 26, 2016.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-15-01012-CV

           IN THE INTEREST OF A.O.M. AND J.X.M., CHILDREN


                      On Appeal from the 314th District Court
                               Harris County, Texas
                        Trial Court Cause No. 2014-06157J

                    MEMORANDUM OPINION


       This appeal is brought by J.M., III (“Jerry”) and A.M. (“Audrey”) from an
order terminating their parental rights to their children, A.O.M. (“Alex”) and
J.X.M. (“Joyce”).1 See Tex. Fam. Code Ann. § 161.001 (West, Westlaw through
2015 R.S.).

       The Texas Department of Family and Protective Services (“the
Department”) petitioned the trial court to terminate both parents’ parental rights,

       1
       We use pseudonyms to refer to appellants and their children in this case. See Tex. Fam.
Code Ann. § 109.002(d) (West, Westlaw through 2015 R.S.); Tex. R. App. P. 9.8.
citing several grounds for termination. The trial court heard evidence and
subsequently terminated Jerry’s and Audrey’s parental rights on the grounds that
they (1) knowingly placed or allowed Alex and Joyce to remain in conditions or
surroundings that endangered the children’s physical or emotional well-being
(section 161.001(b)(1)(D)); (2) engaged in conduct or knowingly placed Alex and
Joyce with persons who engaged in conduct that endangered the children’s
physical or emotional well-being (section 161.001(b)(1)(E)); (3) have been the
major cause of the failure of the children to be enrolled in school (section
161.001(b)(1)(J)); and (4) failed to comply with the provisions of a court order that
specifically established the actions necessary for the return of Alex and Joyce
(section 161.001(b)(1)(O)). The trial court also determined that it is in the best
interest of Alex and Joyce to terminate Jerry’s and Audrey’s parental rights
(section 161.001(b)(2)). Id. §§ 161.001(b)(1)(D), (E), (J) & (O); 161.001(2). Jerry
challenges the sufficiency of the evidence to support the trial court’s judgment
under subsections (D), (E), and (O) but not (J). Audrey concedes the evidence is
legally and factually sufficient to support the trial court’s judgment under
subsection (O) but challenges the sufficiency of the evidence as to subsections (D),
(E) and (J). Both parents challenge the trial court’s decision that termination is in
the best interest of Alex and Joyce. See id. § 161.001(b)(2).

      A. Burden of Proof and Standards of Review

      Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section
161.001(b)(1) of the Family Code, and (2) termination is in the best interest of the
child. Id. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Clear and convincing evidence is that 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

                                         2
allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (West,
Westlaw through 2015 R.S.); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). This
heightened burden of proof results in a heightened standard of review. In re C.H.,
89 S.W.3d at 26 (“[T]he 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.”); see also In re C.M.C.,
273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

       In a legal-sufficiency review, we consider 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 256, 266 (Tex. 2002). This means we must assume the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We
disregard all evidence that a reasonable factfinder could have disbelieved or found
to have been incredible, but we do not disregard undisputed facts, regardless of
whether they support the finding. Id. If we determine no reasonable factfinder
could form a firm belief or conviction the matter to be proven is true, we must
conclude the evidence is legally insufficient. Id.

       In a factual-sufficiency review, we give due consideration to evidence the
factfinder reasonably could have found to be clear and convincing. Id. Our inquiry
is whether the evidence is such that a factfinder reasonably could form a firm
belief or conviction about the truth of the Department’s allegations. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that evidence in favor of its finding. Id. If, in light of the entire
record, the disputed evidence is so significant that the factfinder could not
reasonably have formed a firm belief or conviction, we must find the evidence is
factually insufficient. Id.

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      B. The Evidence

      Detective David Nettles of the Webster Police Department testified the
investigation began with a cyber-tip alleging possible child sexual assault by Jerry
and Audrey against their children, Alex and Joyce. At the time of trial, Alex was
eleven years old and Joyce was seven years old. The investigation revealed there
was no physical evidence of child sexual assault. Still, Nettles was concerned by
comments found in a joint internet “chat” account belonging to Jerry and Audrey.

      A witness, “Ike,” described by Nettles as credible, was interviewed and Ike
stated that Jerry had asked him to have sexual contact with Joyce, who was six
years old at the time. When Nettles questioned Jerry, he denied the allegation but
admitted to knowing Ike. Jerry said he met Ike online and they agreed to meet so
that Jerry could bring Ike to Jerry’s residence. Jerry claimed that Ike had made
advances toward Joyce. Jerry then brought Ike into his home for the purpose of Ike
having sex with Audrey.

      The police obtained a search warrant for the internet history of Jerry and
Audrey. The resulting search revealed that many of the messages regarded child
abuse, sexual child abuse, bestiality, or incest. Jerry claimed it was “fantasy” and
he was interested in helping people. Nettles learned that many men were brought
into the home to engage in sexual activities with Jerry and Audrey. Jerry told
Nettles that normally he did not have his children in the car with him when he
picked up these men.

      The home had two bedrooms and, according to Jerry and Audrey, the sexual
contact always occurred in their bedroom. They said the children were “typically”
asleep in the children’s room.




                                         4
      The police executed a search warrant on the home and found what appeared
to be a marijuana joint on the kitchen table. In the parents’ bathroom, they found a
box containing a powdery substance that Jerry confirmed was methamphetamine.
The substance field-tested positive for methamphetamine. The bathroom was in an
area of the home to which Nettles believed the children had access. Audrey
admitted to using marijuana and methamphetamines. Jerry told Nettles that he did
not use drugs.

      The trial court admitted into evidence the court-ordered family plans of
service for Jerry and Audrey that detailed the encounter with Ike. Also admitted
into evidence were “conversations” between Jerry and Audrey and another
individual from the internet account. Jerry admitted to Nettles that the
communications were from Jerry’s account. The exchanges contain references to
incest, child sexual abuse, and bestiality. The search of the home revealed
“copious” amount of adult pornography. The covers of the videos uncovered in the
search showed pictures of adults engaging in sexual activity and the covers were
visible upon entering the parents’ bedroom.

      Nettles testified that based on his investigation and his discoveries at the
home and in the internet account, the parents had not provided a safe and stable
home for the children. Further, Nettles believed the children were in danger.
Nettles admitted the police found no evidence of incest, bestiality, or sexual assault
in the home or any evidence the children were harmed by Jerry’s actions in
bringing strange men to the home.

      Bruce Jefferies, the custodian of records for National Screening Center,
testified regarding the results of drug tests performed on Jerry and Audrey. Jerry
tested positive for methamphetamines, cocaine, cocaethylene, and marijuana in
December 2014. Jefferies testified the amount of methamphetamines was

                                          5
“extremely high” and had to “be in his body within the last three days” of the test.
The amount was indicative of an all-day affair, not just a one-time use. The other
positive results indicated more than a one-time use, but not every day. Jerry also
tested positive for a high level of alcohol. Several months later, in April 2015,
Jerry had no body hair and the only test that could be run was a urine test, which
was clean. In September 2015, Jerry was to be tested again but walked out, which
the screening center views as a positive drug test.

      Audrey tested positive for methamphetamines and marijuana in December
2014. The results were indicative of more than one use of methamphetamines.
Tests showed Audrey had not ingested marijuana; the positive read was based on
the marijuana environmental exposure, meaning Audrey was in a closed
environment with someone who was smoking marijuana. Audrey tested “clean” in
January, April, and September 2015.

      Laurisha Carroll, the caseworker, testified the children came to the
Department’s attention following the police investigation. There were concerns the
children were being sexually abused and exposed to illegal drugs, and were not
attending school.

      Ostensibly, Jerry was home-schooling the children. However, when asked
for lesson plans or curriculum, Jerry did not provide anything valid. Once the
children were placed in the Department’s care, they were enrolled in school.
Initially, their grades were very poor and they struggled to catch up to grade level.
At the time of trial, after being in school for a year, their performance was average.

      Audrey was offered a service plan and asked to complete a psychosocial
assessment and a psychosexual assessment, and follow any recommendations from
the assessments, including getting therapy. The service plan required Audrey to
complete parenting classes, a substance and alcohol abuse assessment, domestic
                                          6
violence counseling, and random drug testing. Carroll testified that Audrey did not
complete her substance-abuse assessment. Audrey did complete her psychosocial
and psychosexual assessments and it was recommended that she complete
individual therapy and participate in the Boundary Group. As of trial, Audrey had
not completed those services; she stopped attending classes in September. Audrey
was not successfully discharged from individual therapy or the Boundary Group.
Audrey completed her parenting classes.

      Though employed, Audrey did not have stable housing at the time of trial.
She complied with requests to submit to random drug and alcohol tests. Audrey
has not provided any financial assistance for the children. The Department asked
the court to terminate Audrey’s parental rights.

      Carroll testified that Jerry’s service plan called for him to complete
psychosexual assessment and follow any resulting recommendations, including
therapy. The service plane also called for Jerry to complete a psychiatric
evaluation, parenting classes, a substance abuse assessment, release of information,
and a Battering Intervention and Protection Program (“BIPP”).

      According to Carroll, Jerry never enrolled in a BIPP program. He did not
complete the parenting classes or the psychiatric evaluation. Jerry did complete the
psychosexual assessment and it was recommended that he complete psychosexual
therapy but he never began it. Jerry was not employed and did not have a stable
place to live. Jerry had not provided any financial assistance for the children. Jerry
failed to comply with court orders for drug testing. The Department asked the court
to terminate Jerry’s parental rights.

      Carroll testified the children were currently placed with Audrey’s mother
and stepfather. The children were doing very well. Their grades were A’s and B’s,
and they were participating in extracurricular activities, tutoring, and after-school
                                          7
programs. Carroll had visited the children in their placement and testified they
have a very strong bond with their grandparents. According to Carroll, the
grandparents were very loving and protective, and were doing everything they
could to provide for the children’s needs. Carroll testified it was her belief that it
would be in the children’s best interest for the parents’ rights to be terminated.

      When the children came into the Department’s care, they were sent to the
Children’s Assessment Center for therapy and psychological evaluation. It was
recommended they remain with their maternal grandmother, be placed in therapy,
and be referred to the Boys and Girls Club and long-term therapy. It was also
recommended there be no visitation with the parents. The children were discharged
from therapy and referred to another therapist for long-term therapy.

      Carroll did not believe the parents have done all they could to alleviate the
Department’s concerns and agreed the father has “basically done nothing.” Carroll
did not believe the parents were able to provide a safe or stable environment. The
maternal grandmother was providing such an environment, and it was in the best
interest of the children to remain in her home. Both parents had been charged with
endangering the welfare of a child. Carroll testified the Department was seeking
termination of the parents’ parental rights based on their failure to complete
services and the current endangerment charges.

      Neither Jerry nor Audrey testified. The children’s maternal grandmother,
“Alicia,” testified that she and her husband had been caring for the children during
the pendency of the case. When the children came to her home, they were enrolled
in school without having to be withdrawn from another school. The children were
behind in school. Alicia had not ever had concerns regarding sexual abuse of the
children. The children were doing well in her home, and she wanted to provide
long-term care for them. Alicia understood the court had ordered no contact

                                           8
between the children and their parents; she had abided by that court order and
intended to continue to do so. Alicia testified that she would protect Alex and
Joyce from their parents if the children were placed with her permanently. It was
Alicia desire to adopt the children. Alicia further stated the children loved their
parents and missed them.

      Leslie Powell, the child advocate, recommended the rights of both parents be
terminated. She, too, testified that termination of parental rights was in the
children’s best interest because the parents had not done enough to alleviate the
concerns that brought the children into the Department’s care. Powell had visited
with the children in their current placement and they were doing very well. Powell
did not discuss with the children how they came into care or their parents; the
children never mentioned their parents to Powell and Powell never discussed the
children’s parents with the children. Powell testified the children did not seem
“closed off” about any subjects and were open about school, their activities, and
how they liked their living environment.

      Lisa McCartney was appointed by the court to assist the ad litem attorneys.
She had reviewed all the records and interviewed the grandparents and the
children. It was her recommendation that the rights of both parents be terminated.

      C. Statutory Grounds for Termination

      Audrey concedes the legal and factual sufficiency of the evidence to support
termination of her parental rights under subsection (O). Because the judgment
could be upheld on this unchallenged ground, we uphold the judgment concerning
the statutory grounds for termination and do not address Audrey’s arguments as to
(D), (E) or (J). See In the Interest of N.S., 14-15-00601-CV, 2015 WL 9240920, at
*3 (Tex. App.—Houston [14th Dist.] Dec. 15, 2015, no pet.) (mem. op.).
Accordingly, we overrule Audrey’s first and second issues.
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      Jerry does not challenge the sufficiency of the evidence to support
termination of his parental rights pursuant to subsection (J). Accordingly, we
uphold the judgment concerning the statutory grounds for termination on this
unchallenged ground and we do not address Jerry’s arguments regarding (D), (E),
or (O). See id. We overrule Jerry’s first and second issues.

      D. Best Interest of the Children

      Both Audrey and Jerry challenge the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of their parental rights
is in the best interest of Alex and Joyce. The factors the trier of fact may use to
determine the best interest of each child include: (1) the desires of the child, (2) the
present and future physical and emotional needs of the child, (3) the present and
future emotional and physical danger to the child, (4) the parental abilities of the
persons seeking custody, (5) the programs available to assist those persons seeking
custody in promoting the best interest of the child, (6) the plans for the child by the
individuals or agency seeking custody, (7) the stability of the home or proposed
placement, (8) acts or omissions of the parent that may indicate the existing parent-
child relationship is not appropriate, and (9) any excuse for the parents’ acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). See also In re
U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied),
and Tex. Fam. Code Ann. § 263.307(b) (West, Westlaw through 2015 R.S.) (listing
factors to consider in evaluating parents’ willingness and ability to provide the
child with a safe environment). A finding in support of “best interest” does not
require proof of any unique set of factors, nor does it limit proof to any specific
factors. See Holley, 544 S.W.2d at 371–72.

      We begin with the presumption that the best interest of the child is served by
keeping the child with the child’s natural parent. See In re D.R.A., 374 S.W.3d

                                          10
528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The burden is on the
Department to rebut that presumption. See In re U.P., 105 S.W.3d at 230. We also
presume that prompt and permanent placement of the child in a safe environment is
in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a) (West, Westlaw
through 2015 R.S.).

       1. Needs of and Danger to the Children

       With regard to the present and future emotional and physical needs of Alex
and Joyce, and the present and future emotional and physical danger to them, the
record contains evidence that Jerry offered an adult male the opportunity to have
sex with Joyce, pornography in the home was accessible to the children, and Jerry
and Audrey “chatted” repeatedly about engaging in sexual conduct with their
children. At the time Alex and Joyce came into the Department’s care, both Jerry
and Audrey tested positive for drugs, and drugs were discovered in the home,
accessible to the children. The children were not enrolled in school when they
came into the Department’s care. Accordingly, this factor weighs in favor of the
trial court’s finding.

       2. Stability and Compliance with Court-Ordered Service Plans

       In determining the best interest of the child in proceedings for termination of
parental rights, the trial court properly may consider that the parent did not comply
with the court-ordered service plan for reunification with the child. See In re
E.C.R., 402 S.W.3d 239, 249 (Tex. 2013). The record shows neither Jerry nor
Audrey complied with their respective service plans. Jerry failed to enroll in a
BIPP program, did not complete the parenting classes or the psychiatric evaluation,
and never began psychosexual therapy. Jerry was not employed and had no stable
home. Jerry failed to comply with court orders for drug testing. Audrey failed to
complete her substance-abuse assessment, individual therapy, and the Boundary
                                          11
Group. Audrey was employed but did not have stable housing. Neither Jerry nor
Audrey provided any financial assistance for their children. We therefore conclude
this factor weighs in favor of the trial court’s finding.

      3. Children’s Desires and Proposed Placement

      Alicia testified the children loved their parents and missed them. There was
no other evidence as to the children’s desires.

      The stability of the proposed home environment is an important
consideration in determining whether termination of parental rights is in the child’s
best interest. See In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.—Houston [1st
Dist.] 1998, no pet.). A child’s need for permanence through the establishment of
a “stable, permanent home” has been recognized as the paramount consideration in
the best-interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—
Dallas 2007, no pet.). Therefore, evidence about the present and future placement
of the child is relevant to the best-interest determination. See In re C.H., 89
S.W.3d at 28. The record reflects the children were doing well in their placement
with their grandparents, Alicia and their step-grandfather.       The children were
making good grades and were involved in extracurricular activities, as well as
tutoring and other after-school programs. Carroll testified the children had a very
strong bond with their grandparents. Alicia testified that she desires to adopt the
children. We conclude this factor weighs in favor of the trial court’s finding.

      4. Parenting Abilities and Family Support

      The record reflects Jerry and Audrey failed to ensure the children were
enrolled in school. Both parents were using drugs and had drugs present in the
home. The parents’ internet account reveals numerous discussions of sexual
contact with children, including their own. Neither parent had a stable home nor


                                           12
provided any financial assistance for the children. Accordingly, this factor also
weighs in favor of the trial court’s finding.

      Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of the parental rights of Audrey and Jerry is in the best interest of Alex
and Joyce. See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.–Fort Worth 2006,
no pet.) (considering the parent’s drug use, inability to provide a stable home, and
failure to comply with a family service plan in holding the evidence supported the
best-interest finding). Based on the evidence presented, the trial court reasonably
could have formed a firm belief or conviction that terminating the rights of Audrey
and Jerry was in the best interest of Alex and Joyce so that they could promptly
achieve permanency through adoption by a family member. See In re T.G.R.–M.,
404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.); In re M.G.D.,
108 S.W.3d 508, 513–14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Therefore, we overrule Audrey’s third issue and Jerry’s third issue.

      Having overruled the appellate issues presented, we affirm the trial court’s
judgment terminating the parental rights of Audrey and Jerry to their children Alex
and Joyce.




                                        /s/     Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Wise.




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