                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-18-00107-CV


IN THE INTEREST OF L.W. AND
F.W., CHILDREN



                                     ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-106063-17

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                         MEMORANDUM OPINION1

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      Appellant K.W. (Father) appeals from the trial court’s order terminating his

parental rights to his children, L.W. (Luke) and F.W. (Faith).2 In three issues, he

argues that the evidence was factually insufficient to support the trial court’s

findings that his conduct satisfied the two alleged endangerment grounds or that



      1
       See Tex. R. App. P. 47.4.
      2
       We refer to the children and their family members by fictitious names.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P.
9.8(a)–(b).
termination of his parental rights was in the children’s best interest.          We

conclude, after deferentially viewing the entire record in favor of the trial court’s

findings, that the evidence allowed it to reasonably form a firm belief or conviction

that Father’s conduct or inaction rose to the level of endangerment and that the

children’s best interest would be served by terminating his parental rights. Thus,

we affirm the trial court’s order of termination.

                                 I. BACKGROUND

      In June 2007, Father and M.C. (Mother) had a son, Luke. In 2009, the

Department of Family and Protective Services (DFPS) received a report that

Father and Mother were subjecting Luke to neglectful supervision, which DFPS

determined there was reason to believe happened.           As a result, Luke was

removed and placed with a relative. At some point, Luke was returned to Mother

and Father, and the trio moved to Florida. In 2010, Mother and Father had a

daughter, Faith. Shortly after Faith’s birth and after the family moved back to

Texas, DFPS received another neglectful-supervision report and a report of

medical neglect. DFPS found reason to believe both reports—at four months

old, Faith weighed eleven pounds. Both Luke and Faith were removed from the

home and placed in foster care, and DFPS filed a petition to terminate Father’s

and Mother’s parental rights.

      On April 25, 2012, a trial court terminated Mother’s parental rights to Luke

and Faith based on Mother’s unrevoked or irrevocable affidavit of voluntary

relinquishment of her parental rights and on the court’s finding that termination

                                           2
was in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K),

(b)(2) (West Supp. 2017). Regarding Father, the trial court found by clear and

convincing evidence that he endangered the children and failed to comply with

the service plan but that termination of his parental rights was not in the

children’s best interest. See id. § 161.001(b)(1)(D), (E), (O). At that time, the

trial court appointed DFPS as the children’s permanent managing conservator.

      In 2014, the children were returned to Father. Shortly thereafter, Faith

made an “allegation about [Luke] sticking a corn dog up her butt.”           DFPS

investigated but found no injuries to Faith; thus, DFPS “closed” the case. In May

and December 2015, DFPS investigated reports that the children frequently were

left home alone, that Luke was hitting Faith, and that the children were

“unkempt,” “dirty,” and covered in “bug bites and bruises (arms/legs/face).”

Although DFPS found reason to believe these reports, it closed the investigation

after Father and the children “fled” to Tennessee. While in Tennessee, there

were allegations that Father was physically abusing Luke. Additionally, Father

was admitted to a psychiatric hospital in Tennessee for his bipolar disorder, and

Faith and Luke stayed with an aunt. The children were removed from the aunt’s

care after there were allegations that her son was sexually abusing Luke.

      In October 2016 after Father moved back to Texas with the children, Faith

told a teacher that “she had special time with dad that . . . [Luke] was not allowed

to be in the room with.” This allegation was “clear[ed] up” after Faith explained

“special time” was computer time with Father.            Also in October, DFPS

                                         3
investigated after Luke had “a facial injury” he said was caused by Father

“pick[ing] him up by his neck.” Father admitting grabbing Luke by the neck but

denied lifting him off the ground.    DFPS noted that Father “was resistant to

utilizing community resources.” Two months later, DFPS received a report that

the children were frequently left home alone and neglected. The investigation

was closed because Father lost his job, eliminating the apparent cause of his

leaving the children alone, and because Father had signed a safety plan

representing that he would not leave the children alone. A similar report was

received in February 2017 with a similar disposition—case closed because

Father lost his job.

        In October 2017, Faith’s teacher contacted DFPS because Faith was

frequently tired, dirty, hungry, and hurting when she arrived at school. Once

Faith came to school with a black eye. The teacher also saw Luke be physically

violent and “cruel” to Faith.        Luke had behavioral problems at school,

necessitating his placement in a special-education class and leading to his

teacher rating him an eight out of ten for disruptiveness. Like Faith, Luke would

come to school hungry, dirty, and bruised. He would fall asleep at school every

day and sleep for between thirty minutes and an hour, disrupting his instructional

time.

        Kamisha Knight, an investigator with DFPS, investigated Faith’s teacher’s

report of neglectful supervision and physical neglect. Knight was unable to reach

Father after repeatedly trying to call him at multiple, different phone numbers.

                                         4
After talking to Faith, Knight found reason to believe that Father was leaving

Faith and Luke home alone and that Luke was hitting Faith. Charity Garcia, a

forensic interviewer with an advocacy center, conducted a forensic interview of

Faith on October 13, 2017. Faith told Garcia that Father put his penis “to her

butthole,” describing “penile penetration of her anus by [Father’s] penis” that

began when she was four years old and continued until she was six or seven

years old. Father told Faith to keep it a secret. Faith also drew a picture during

the interview, showing Faith in a bed saying, “No.” She wrote under the picture:

“[My dad] has sex wif me.”

      Knight observed Garcia’s interview with Faith and took Faith to a hospital

for a sexual-assault exam. Faith made the same outcry statements to the nurse

during the exam.3 Knight immediately took Faith to a foster home.          See id.

§ 262.104 (West Supp. 2017).       On October 16, 2017, DFPS filed a petition

seeking the termination of Father’s parental rights. See id. § 161.002(b) (West

Supp. 2017). That same day, the trial court entered orders removing Faith and

Luke from Father’s custody and naming DFPS as their temporary sole managing

conservator. In November 2017, the trial court found that Father had subjected

the children to aggravated circumstances, warranting the waiver of a service plan

and of making reasonable efforts to return the children to Father.         See id.

§ 262.2015(a) (West Supp. 2017). Specifically, the trial court found that (1) Faith


      3
        At the time of the termination trial, law enforcement was continuing to
investigate Faith’s sexual-abuse allegations.

                                        5
or Luke was a victim of serious bodily injury or sexual abuse inflicted by Father

and (2) Father had engaged in conduct that constituted the offenses of indecency

with a child, sexual assault, aggravated sexual assault, abandoning or

endangering a child, and continuous sexual abuse of a child or children. See id.

§ 262.2015(b)(2), (b)(3)(D), (E), (G), (I), (M).

      Luke was placed in several foster homes, two of which lasted only thirty-six

hours based on his behavior and resulted in his admissions to a psychiatric

hospital. In December 2017, Luke was placed with the Atkins family. Faith was

placed in a separate foster home from Luke and began seeing a counselor,

Bryant Guidry, in December 2017.4           Faith told Guidry about “extraordinary

neglect and physical abuse” that occurred while she was with Father, including

Father and Luke physically attacking her, Father choking her, going without food

for days, and being bitten by rats in her home. Luke later denied that Father

choked him or that he had been bitten by rats. Faith wanted to be reunited with

Luke but not with Father.

      At the March 19, 2018 trial, Father testified that many of the problems that

were reported to DFPS and led to the removal of Faith and Luke were a direct

result of his dire financial straits.   He did not have the money to wash the

children’s clothes, he could not afford his psychiatric medications, the hotel he

was living at did not have reliable phone service, 5 and he had no choice but to


      4
       One of Luke’s short-term placements was in the same home as Faith.
      5
       Father explained that this was why Knight was unable to reach him.
                                           6
occasionally leave the children alone while he sporadically worked.        But he

pointed out that he applied for the free-school-lunch program every year for the

children, was on welfare, and was on a long waiting list for government housing.

He denied the sexual- and physical-abuse allegations.

      Luke’s foster mother Betty Atkins testified that Luke had lived with her

family since December 2017 and that she wanted to adopt Luke and Faith. Luke

told her that he wants to stay with the Atkins family “forever” and calls Betty and

her husband mom and dad. Luke began taking medication for his behavior,

which had improved, and had better sleep patterns. Betty believed she could

provide needed supervision for Luke and that it would be in both Luke’s and

Faith’s best interest to be reunited in her home.

      The children’s DFPS caseworker Lauren Robinson testified that Faith’s

current foster placement was not interested in adoption but that she had

improved since she had been removed from Father. Although Robinson had

concerns about Faith being reunited with Luke, she would move Faith to an

adoption-motivated home if the Atkins home did not work. Robinson believed the

children’s best interest would be served through stability and permanency, which

Father could not provide, and that Father’s parental rights should be terminated.

      The children’s attorney ad litem stated to the court that she agreed the

termination of Father’s parental rights would be in the children’s best interest.

DFPS summed up why it requested that Father’s parental rights be terminated:

      Judge, this is not a case about [Father] being poor. This is a case
      about [Father’s] poor judgment, extreme neglect, physical abuse of
                                       7
        his children, and now in this case, sexual abuse of [Faith], and it’s
        gone on these children’s entire lives. Back in 2010, 2014 case there
        was a[n] [endangerment] finding against [Father]. In our case,
        there’s an aggravated circumstance finding for the sexual abuse of
        [Faith]. There ha[ve] been . . . over 17 different reports to [DFPS]
        during these children’s lives. There’s been three out-of-home
        placements for [Luke]. There’s been two out-of-home placements
        for [Faith]. We’ve heard she’s spent half of her life in foster care.
        The rest of her life she’s spent being investigated for neglect and for
        physical abuse and medical neglect and now sexual abuse.

              ....

               [DFPS] has a plan for these children going forward that would
        be a permanent plan, placing the children together. They’re
        receiving the therapies that they need, they’re receiving the
        medication they need, they’re receiving the education opportunities
        that they need and we would ask that the Court find that it’s in their
        best interest that parental rights be terminated.

The trial court found by clear and convincing evidence that Father had

endangered the children when he (1) knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endangered their physical

or emotional well-being (subsection (D)) and (2) engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangered

their   physical     or   emotional   well-being   (subsection   (E)).      See   id.

§ 161.001(b)(1)(D), (E). The trial court further found by clear and convincing

evidence that termination of Father’s parental rights was in the children’s best

interest and specifically found that the termination was not based on the fact that

Father was economically disadvantaged. See id. § 161.001(b)(2), (c)(2). The

trial court named DFPS as the children’s permanent managing conservator.



                                          8
      Father now appeals the order of termination and argues in three issues

that the evidence was factually insufficient to support the trial court’s

endangerment and best-interest findings.

                       II. SUFFICIENCY OF THE EVIDENCE

                        A. STANDARD AND SCOPE OF REVIEW

      Although the parent-child relationship is to be protected, it may be

terminated upon a showing by clear and convincing evidence that the parent’s

actions satisfy a statutory ground justifying termination and that termination

would be in the child’s best interest. Id. §§ 161.001(b), 161.206 (West Supp.

2017); In re E.R., 385 S.W.3d 552, 554–55 (Tex. 2012). Evidence is clear and

convincing if it “produce[s] in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann.

§ 101.007 (West 2014).

      When the factual sufficiency of the evidence is challenged, we review the

entire record in the light most favorable to the finding, giving due deference to the

fact-finder’s findings, and may not supplant the judgment with our own. In re

A.B., 437 S.W.3d 498, 500 (Tex. 2014). Evidence is factually sufficient if a fact-

finder could reasonably form a firm conviction or belief that the parent violated a

conduct provision of section 161.001(b)(1) and that the termination of the parent-

child relationship would be in the children’s best interest. In re C.H., 89 S.W.3d

17, 28 (Tex. 2002).



                                           9
                           B. ENDANGERMENT GROUNDS

      The trial court found that Father’s conduct endangered the children,

satisfying two conduct grounds supporting termination—subsections (D) and (E).

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).         In his second and third

issues, Father argues that the evidence was factually insufficient to support

either endangerment ground. Although DFPS was required to prove only one

conduct ground listed in section 161.001(b)(1) to support the trial court’s

termination determination, we will address both grounds in tandem based on the

interrelated nature of the endangerment facts. See In re A.V., 113 S.W.3d 355,

362 (Tex. 2003); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth

2009, no pet.) (op. on reh’g).

      Under subsection (D), we must examine evidence related to the

environment of the children to determine if the environment was the source of

endangerment to the children’s physical or emotional well-being.       In re D.T.,

34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g). A

child is endangered when the environment creates a potential for danger that the

parent is aware of but disregards. In re S.M.L., 171 S.W.3d 472, 477 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). Under subsection (E), the inquiry is

whether evidence exists that the endangerment of the child’s physical or

emotional well-being was the direct result of the parent’s conduct, including acts,

omissions, and failures to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—



                                        10
Fort Worth 2003, no pet.). A single act or omission is insufficient; a voluntary,

deliberate, and conscious course of conduct by the parent is required. Id.

      Although Father suffered from bipolar disorder, requiring treatment and

hospitalizations in the past and causing him to have suicidal thoughts, Father

admitted that he was not under a doctor’s care for the disorder and was unable to

take his required medication. Faith and Luke frequently went days without food

and occasionally the food at their home contained mouse droppings even though

Father received government assistance. Although Father stated that there had

only been one mouse in their hotel room, which he testified the children were

“fascinated” with, Faith reported that there were multiple mice in the trash cans

and that she was bitten by them. The children were routinely dirty and tired when

they arrived at school, with Luke being so tired he had dark circles under his

eyes and would fall asleep at school. Indeed, Luke’s teachers began to provide

clothes and hygiene products for him, and Faith frequently would be sent to the

nurse so she could clean up and get a change of clothes. Father regularly left

the children at home alone. So much so that the police were called multiple

times when the children were found outside unattended. Father did not dispute

that he left the children without supervision, arguing instead that he had no

choice but to leave them alone. But apart from the children being unsupervised

at such young ages, Faith was being left alone with Luke, who had emotional

disabilities and had been seen being “very physical” and “cruel” to Faith. There

was also evidence that Father had physically abused the children and that the

                                       11
abuse turned sexual with Faith.    Although Father categorically denied Faith’s

sexual-abuse allegations, the fact-finder was free to credit instead the testimony

of Garcia and Knight regarding Faith’s outcry statements.

      All of this conduct, which was more than an isolated act or omission,

allowed a reasonable fact-finder to reasonably form a firm conviction or belief

that Father’s acts and omissions endangered the children. See, e.g., In re S.H.,

No. 02-17-00188-CV, 2017 WL 4542859, at *10–11 (Tex. App.—Fort Worth

Oct. 12, 2017, no pet.) (mem. op.); In re J.R., 501 S.W.3d 738, 743–44 (Tex.

App.—Waco 2016, no pet.); In re M.L.F., No. 02-13-00459-CV, 2014 WL

2465137, at *14 (Tex. App.—Fort Worth May 29, 2014, no pet.) (mem. op.); In re

J.A.S., No. 07-12-00150-CV, 2012 WL 4372952, at *6 (Tex. App.—Amarillo

Sept. 25, 2012, no pet.) (mem. op.); In re R.W., 129 S.W.3d 732, 742 (Tex.

App.—Fort Worth 2004, pet. denied); In re K.M.B., 91 S.W.3d 18, 24–25 (Tex.

App.—Fort Worth 2002, no pet.). And Father’s argument that the trial court’s

endangerment findings were nothing more than a judgment on his economic

status is incorrect under the facts of this case. See generally Tex. Fam. Code

Ann. § 161.001(c)(2) (prohibiting termination if findings based on evidence that

parent is economically disadvantaged); In re S.I.-M.G., No. 02-12-00141-CV,

2012 WL 5512372, at *11 (Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (mem.

op.) (“A parent’s rights cannot be terminated based on poverty without a showing

that the poverty has endangered the child.”).



                                       12
      The evidence showed that Father’s conduct, not his poverty, endangered

the children. Father received food stamps but did not provide sufficient food for

the children, allowing a reasonable fact-finder to find that the children were

hungry because Father chose not to provide food for them. Father also refused

DFPS’s offered childcare services, again showing that Father voluntarily chose to

leave the children unattended rather than use available community assistance.

Father’s sporadic employment led to unstable housing, causing the children to

live in unsanitary conditions in a hotel with no reliable phone service and little

access to food. And Father seemed to attribute his employment problems to the

children, arguing that he “lost all of those jobs” because he chose his children

over his job “every time.”    The endangerment findings were not based on

Father’s economic status but on his inability to provide for the children’s basic

needs and on his voluntary conduct that endangered the children. See In re

A.N., No. 02-14-00206-CV, 2014 WL 5791573, at *18–19 (Tex. App.—Fort Worth

Nov. 6, 2014, no pet.) (mem. op.); In re D.R., No. 2-06-146-CV, 2007 WL

174351, at *4–6 (Tex. App.—Fort Worth Jan. 25, 2007, no pet.) (mem. op.) cf. In

re S.L.W., 529 S.W.3d 601, 613 n.10 (Tex. App.—Texarkana 2017, pet. denied)

(“The evidence established that [Father] had maintained regular employment and

appropriate housing and, although there was evidence [Father] had difficulty

paying some fees, the evidence did not establish, by clear and convincing

evidence, that [the child’s] needs would go unmet if she were to reside with

[Father].”). We overrule issues two and three.

                                       13
                                 C. BEST INTEREST

      In his first issue, Father argues that the evidence was factually insufficient

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

children’s best interest.    A child’s best interest is a trial court’s “primary

consideration” when determining conservatorship, possession, or access to the

child. Tex. Fam. Code Ann. § 153.002 (West 2014); see also id. § 161.205

(West 2014) (stating if termination not ordered, trial court may either deny the

petition or “render any order in the best interest of the child”). There is a strong

presumption that keeping a child with a parent is in the child’s best interest. See

In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But the emotional and physical

interests of the child may not be sacrificed merely to preserve the parent-child

relationship. See E.C.R., 402 S.W.3d at 240. There are several nonexclusive

factors a trial court may consider in determining a child’s best interest, including

the emotional and physical needs of the child now and in the future, the parenting

abilities of the individuals seeking custody, the plans for the child, the stability of

the home or proposed placement, the acts or omissions of the parent indicating

that the parent-child relationship is not a proper one, and the desires of the child.

See Tex. Fam. Code Ann. § 263.307 (West Supp. 2017); Holley v. Adams,

544 S.W.2d 367, 371–72 (Tex. 1976); see also C.H., 89 S.W.3d at 27. The

same evidence may be probative of both conduct and best interest. E.C.R.,

402 S.W.3d at 249.



                                          14
          After the children were removed from Father, both Luke and Faith rapidly

improved. Faith began seeing a counselor, Luke participates in play therapy,

and both are taking needed medications.6 Luke’s behavioral issues subsided

and he was able to regularly stay awake during school. Guidry testified that

Father had damaged Faith and that Faith desired reunification with Luke but not

with Father.        Betty testified that the Atkins family is able to provide the

supervision Luke needs. Although Faith’s current foster home was not willing to

adopt her, the Atkins family was willing to do so and planned to adopt Luke.

Betty believed that the children’s best interest would be best served by their

reunification in her home, and Luke expressed that he wants to be with the Atkins

family “forever.” Robinson testified that if it was not possible to reunite Luke with

Faith based on his behavior, DFPS would find an adoption-motivated placement

for her. Robinson stated that stability and permanence were very important for

the children, which they could get only through termination of Father’s parental

rights.       The children’s attorney ad litem and Robinson both stated that the

termination of Father’s parental rights was in the children’s best interest.

          We conclude that this evidence, combined with the evidence of Father’s

endangering conduct, allowed the fact-finder to reasonably form a firm conviction

or belief that the termination of Father’s parental rights was in the children’s best

interest. See C.H., 89 S.W.3d at 28; S.H., 2017 WL 4542859, at *12–14; In re

          6
       Luke requires medication for his attention-deficit disorder, aggression, and
sleep disorder; Faith needs medication for her attention-deficit disorder and
anxiety.

                                         15
A.L., 545 S.W.3d 138, 150 (Tex. App.—El Paso 2017, no pet.); In re H.W., No.

11-00-00385-CV, 2002 WL 32344346, at *5–6 (Tex. App.—Eastland June 27,

2002, no pet.) (not designated for publication). See generally Tex. Fam. Code

Ann. § 263.307(a) (presuming prompt and permanent placement of child in safe

environment is in child’s best interest). And we again disagree with Father that

the best-interest evidence shows nothing more than that Father was

economically disadvantaged. See In re A.R.C., No. 11-17-00362-CV, 2018 WL

3060949, at *3 (Tex. App.—Eastland June 21, 2018, no pet. h.) (mem. op.); In re

J.J.D., No. 13-11-00388-CV, 2012 WL 2361796, at *6 (Tex. App.—Corpus Christi

June 21, 2012, no pet.) (mem. op.). We overrule issue one.

                               III. CONCLUSION

      The evidence was factually sufficient to support the fact-finder’s findings

that Father engaged in endangering conduct as defined in subsections (D) and

(E) and that termination of Father’s parental rights was in the children’s best

interest. Accordingly, we overrule Father’s appellate issues and affirm the trial

court’s order of termination. See Tex. R. App. P. 43.2(a).


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and BIRDWELL, JJ.

DELIVERED: July 12, 2018



                                        16
