













 
COURT 
OF APPEALS
SECOND 
DISTRICT OF TEXAS
FORT 
WORTH
 
NO. 
2-02-289-CV
 
IN 
THE INTEREST OF B.K.D., G.D.D.
AND 
A.C.W., CHILDREN
 
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FROM 
COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
 
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OPINION
 
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        This 
is an appeal from a judgment rendered on a jury verdict terminating the parental 
rights of Gwendolyn W. and John D. as to their two children, B.K.D. and G.D.D. 
The order also terminated Gwendolyn and Billy W.’s parental rights to their 
child, A.C.W. On appeal, Gwendolyn, Billy, and John each complain that the 
evidence is insufficient to support the verdict. We will affirm.
Factual 
Background
        After 
a rocky five-year marriage, Gwendolyn and John divorced in July 1996. Gwendolyn 
was appointed managing conservator of the children. John was allowed visitation 
and ordered to pay child support.
        In 
June of 1998, B.K.D. alleged that John had sexually assaulted her. She later 
recanted her story, however, and claimed that Gwendolyn’s stepfather (her 
stepgrandfather) had licked and fondled her. Gwendolyn did not report B.K.D.’s 
allegations to the police, but she did take her to the pediatrician for an 
examination. The pediatrician refused to perform the examination, and instead, 
contacted CPS. CPS then had Dr. Terry Johnson perform a rape examination on 
B.K.D. Dr. Johnson concluded that B.K.D. exhibited negative physical 
characteristics that could be consistent with her allegations of fondling.
        On 
July 7, 1998, Kathy Dudley, a CPS supervisor, interviewed B.K.D. Based on the 
details B.K.D. was able to provide regarding the assault, Dudley concluded that 
B.K.D. was telling the truth. Dudley also interviewed G.D.D. During the 
interview, G.D.D. crawled over Dudley, made statements of a sexual nature to 
her, and touched her breasts. This behavior caused Dudley to believe that G.D.D. 
had also been exposed to sexual activity. Dudley concluded that there was a 
continued risk for further sexual abuse and referred the case to the family 
preservation unit at CPS. Jamie Brumley, a CPS caseworker, was then assigned to 
the case. After a full investigation into the allegations, CPS concluded that 
the allegations against John were indeterminable, but concluded that there was 
reason to believe that Gwendolyn’s stepfather had molested B.K.D. As a result, 
Gwendolyn entered into a safety plan with CPS, agreeing not to allow her 
stepfather near B.K.D. In addition, CPS agreed to provide counseling for B.K.D. 
and Gwendolyn, as well as parenting classes for Gwendolyn.
        In 
February of 1999, Gwendolyn met Billy. The following month, Billy moved in with 
Gwendolyn and the children. On April 3, John contacted CPS and reported that 
Gwendolyn was violating the safety plan by allowing unsupervised contact between 
the children and Gwendolyn’s stepfather. The following day, John reported to 
CPS that Billy was excessively disciplining the children.
        Then, 
in August 1999, Dudley investigated a report that B.K.D. had stated that she did 
not want to visit her father because he “touches [me] in places he’s not 
supposed to.” Dudley interviewed B.K.D., G.D.D., Gwendolyn, and John. B.K.D. 
told Dudley that John had touched her sexually, but that it had been a “long 
time ago.” After interviewing John, Dudley concluded that the allegations were 
unfounded.
        Gwendolyn 
and Billy married in October 1999. In January 2000, A.C.W. was born. Around this 
same time, B.K.D. began having behavioral problems at school. Then, in November 
2000, Gwendolyn discovered B.K.D. and one of her minor cousins inside a closet 
involved in inappropriate contact.
        On 
February 5, 2001, B.K.D. took a note to her teacher at school alleging, “My 
step dad touched me in the wrong place,” and “My step dad is also saying he 
will kill me and my brother [G.D.D.] so help us pleace [sic].” The case was 
referred to CPS for investigation. B.K.D. told investigators that Billy had been 
touching her with his fingers and tongue. She stated that this had been 
occurring since November of 2000, and the last incident had occurred on February 
3, 2001. Once again, Dr. Johnson conducted a rape examination of B.K.D. This 
time, the examination revealed microscopic, superficial lacerations in her 
vaginal area that were consistent with her allegations of abuse.
Procedural 
Background
        CPS 
immediately took possession of B.K.D., G.D.D., and A.C.W. On February 6, 2001, 
CPS filed a petition for emergency protection. The trial judge entered temporary 
orders on March 7, 2001. On June 19, 2001, the trial court amended the temporary 
orders and awarded CPS temporary sole managing conservatorship of B.K.D., 
G.D.D., and A.C.W.
        In 
August 2001, CPS filed an amended petition for protection of the children and 
for termination of Gwendolyn, John, and Billy’s parental rights. The case was 
tried to a jury. On July 31, 2002, the jury returned a verdict of termination. 
As a result, the trial court entered an order terminating the parental rights of 
Gwendolyn, John, and Billy.
        On 
August 14, 2002, Billy filed a motion for new trial, alleging that the evidence 
was legally and factually insufficient to sustain the jury’s finding that 
termination of his parental rights was in the best interest of A.C.W. Then, on 
August 21, 2002, John filed a motion for new trial voicing the same complaint. 
Both motions expired by operation of law.
Standard 
of Review
        Termination 
of parental rights is a drastic remedy and is of such weight and gravity that 
due process requires the petitioner to justify termination by “clear and 
convincing evidence.” Tex. Fam. Code 
Ann. §§ 161.001, 161.206(a) (Vernon 2002); In re G.M., 596 
S.W.2d 846, 847 (Tex. 1980). This intermediate standard falls between the 
preponderance standard of ordinary civil proceedings and the reasonable doubt 
standard of criminal proceedings. G.M., 596 S.W.2d at 847; In re D.T., 
34 S.W.3d 625, 630 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g). 
It is defined as the “measure or degree of proof that will produce in the mind 
of the trier of fact a firm belief or conviction as to the truth of the 
allegations sought to be established.” Tex. 
Fam. Code Ann. § 101.007.
        This 
higher burden of proof required in termination cases alters the appellate 
standard of legal sufficiency review. In re J.F.C., 96 S.W.3d 256, 265 
(Tex. 2002). The traditional no-evidence standard does not adequately protect 
the parents’ constitutional interests. Id. In reviewing the evidence 
for legal sufficiency in parental termination cases, we must determine 
“whether the evidence is such that a factfinder could reasonably form a firm 
belief or conviction” that the grounds for termination were proven. Id. 
at 265-66. We must review all the evidence in the light most favorable to the 
finding and judgment. Id. at 266. This means that we must assume that the 
fact finder resolved any disputed facts in favor of its finding if a reasonable 
fact finder could have done so. Id. We must also disregard all evidence 
that a reasonable fact finder could have disbelieved. Id. We must, 
however, consider undisputed evidence even if it does not support the finding. Id.
        The 
higher burden also alters the appellate standard of factual sufficiency review. In 
re C.H., 89 S.W.3d 17, 25 (Tex. 2002). “[A] finding that must be based on 
clear and convincing evidence cannot be viewed on appeal the same as one that 
may be sustained on a mere preponderance.” Id. In considering whether 
the evidence of termination rises to the level of being clear and convincing, we 
must determine “whether the evidence is such that a factfinder could 
reasonably form a firm belief or conviction” that the grounds for termination 
were proven. Id. Our inquiry here is whether, on the entire record, a 
fact finder could reasonably form a firm conviction or belief that the parent 
violated one of the conduct provisions of section 161.001(1) and that the 
termination of the parent’s parental rights would be in the best interest of 
the child. Id. at 28.
Termination 
of Gwendolyn’s Parental Rights
        In 
one issue, Gwendolyn contends that the evidence is legally and factually 
insufficient to establish by clear and convincing evidence that the termination 
of her parental rights was in the best interest of her children.      

 To preserve a challenge to the legal sufficiency of the evidence for appeal, a 
party must do one of the following: (1) file a motion for instructed verdict; 
(2) object to the submission of a jury question; (3) file a motion for judgment 
notwithstanding the verdict; or (4) file a motion for new trial. Cecil v. 
Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); In re J.M.S., 43 S.W.3d 
60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.); In re A.P., 
42 S.W.3d 248, 254 n.1 (Tex. App.—Waco 2001, no pet.), disapproved on other 
grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002).
        Gwendolyn 
did not, by any of these methods, challenge the legal sufficiency of the 
evidence that termination was in the children’s best interest. Therefore, we 
hold that Gwendolyn failed to preserve her legal sufficiency challenge for our 
review. See In re C.E.M., 64 S.W.3d 425, 427-28 (Tex. App.—Houston [1st 
Dist.] 2000, no pet.).
        Further, 
to preserve a challenge to the factual sufficiency of the evidence for appellate 
review, the party must file a motion for new trial in the trial court. Tex. 
R. Civ. P. 324(b)(2), (3); Cecil, 804 S.W.2d at 510; C.E.M., 
64 S.W.3d at 428; J.M.S., 43 S.W.3d at 62. Gwendolyn did not file a 
motion for new trial. Therefore, she has waived her right to complain about the 
factual sufficiency of the jury’s finding that termination was in the 
children’s best interest. See C.E.M., 64 S.W.3d at 427-28 (holding that 
sufficiency issues must be properly preserved in a termination of parental 
rights case just as in any other civil case); J.M.S., 43 S.W.3d at 62 
(same). Gwendolyn’s sole issue is overruled.
Termination 
of John’s Parental Rights
        In 
his first issue, John contends that the evidence is legally and factually 
insufficient to support the legal grounds for termination as required by section 
161.001(1) of the Texas Family Code. Tex. 
Fam. Code Ann. § 161.001. In proceedings to terminate the parent-child 
relationship brought under section 161.001, the petitioner must establish one or 
more of the acts or omissions enumerated under subdivision (1) of the statute 
and must also prove that termination is in the best interest of the child. If 
multiple grounds for termination are alleged and the trial court submitted the 
termination issue using a broad-form question asking the jury whether the 
parent-child relationship should be terminated, the jury’s finding will be 
upheld on any ground supporting the finding. Tex. Dep’t of Human Servs. v. 
E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh’g); In re P.R., 
994 S.W.2d 411, 415 (Tex. App.—Fort Worth 1999, pet. dism’d w.o.j.), disapproved 
on other grounds by J.F.C., 96 S.W.3d 256. A finding of only one ground 
alleged under section 161.001(1) is sufficient to support a judgment of 
termination. In re A.R.R., 61 S.W.3d 691, 698 (Tex. App.—Fort Worth 
2001, pet. denied), disapproved on other grounds by In re A.V., 46 Tex. 
Sup. Ct. J. 938, 2002 WL 32126136 (July 3, 2003) and In re C.H., 89 
S.W.3d 17 (Tex. 2002). Thus, to be successful on appeal, the appellant must 
establish that the jury’s findings on all of the State’s pleaded grounds are 
unsupported by the evidence. In re B.B., 971 S.W.2d 160, 163 (Tex. 
App.—Beaumont 1998, pet. denied), disapproved on other grounds by C.H., 
89 S.W.3d 17; Zeigler v. Tarrant County Child Welfare Unit, 680 S.W.2d 
674, 678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.).
        Here, 
the jury found that John’s parental rights should be terminated on four 
grounds under section 161.001(1) of the Texas Family Code. On appeal, John only 
challenges three of those grounds. He does not challenge the jury’s finding 
that he failed to comply with the provisions of a court order that specifically 
established the actions necessary for him to obtain the return of his children 
under section 161.001(1)(O). Because John does not challenge this ground, we 
need not address his argument that the evidence is insufficient to support the 
jury’s findings on the other three grounds under section 161.001(1). 
Accordingly, John’s first issue is overruled.
        In 
his second issue, John contends that the evidence is insufficient to show that 
termination of his parental rights was in the best interest of B.K.D. and G.D.D. 
Although a strong presumption exists that the best interest of a child is served 
by keeping custody in the natural parent, this presumption may be overcome by 
clear and convincing evidence of the natural parent’s present unfitness. In 
re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.); Hall 
v. Harris County Child Welfare Unit, 533 S.W.2d 121, 122-23 (Tex. Civ. 
App.—Houston [14th Dist.] 1976, no writ). In determining whether 
this presumption has been rebutted, the Texas Supreme Court has examined several 
factors, namely: the desires of the child, the present and future physical and 
emotional needs of the child, the present and future emotional and physical 
danger to the child, the parental abilities of the person seeking custody, 
programs available to assist those persons in promoting the child’s best 
interest, plans for the child by those individuals or by the agency seeking 
custody, the acts or omissions of the parent that may indicate that the existing 
parent-child relationship is not appropriate, and any excuse for the acts or 
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 
1976).
        Proof 
of acts or omissions under section 161.001(1) may also be probative of whether 
termination is in the child’s best interest. C.H., 89 S.W.3d at 28. 
Further, a fact finder may infer that past conduct endangering the well being of 
a child may recur in the future if the child is returned to the parent. In re 
D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved 
on other grounds by J.F.C., 96 S.W.3d 256 and C.H., 89 S.W.3d 17.
B.K.D. 
and G.D.D.’s Desires
        While 
in foster care, B.K.D. and G.D.D. wrote letters to Gwendolyn indicating that 
they loved their parents and wanted to come home. However, both children also 
expressed a desire to be adopted and told CPS workers that they did not want to 
go back and live with their parents.
B.K.D. 
and G.D.D.’s Present and Future Emotional and Physical Needs
        In 
2000, Dr. David Sabine performed a psychological evaluation on B.K.D. He 
diagnosed B.K.D. as suffering from moderate attention deficit/hyperactivity 
disorder (“ADHD”), depressive disorder, anxiety and social anxiety, low 
global functioning, and “an unusually high level of pathology for a child at 
this age.” As a result of B.K.D.’s anxiety and depressive disorders, Dr. 
Sabine concluded that she was in urgent need of clinical attention. He testified 
that individual psychotherapy was critical to her successful rehabilitation.
        Dr. 
Sabine also evaluated G.D.D. He diagnosed G.D.D. with moderate ADHD and 
disruptive behavior disorder. During his evaluation, Dr. Sabine noted that 
G.D.D.’s stories were “replete with violence, death, and killing” which 
was unusual for a child of this age. Dr. Sabine testified that G.D.D.’s 
behavior could signify the presence of a depressive/anxiety disorder, but it was 
still too early to tell. He did, however, recommend individual therapy for 
G.D.D.
        Based 
on his findings regarding each child, Dr. Sabine concluded that it would take a 
“fairly sophisticated level of knowledge and understanding about parenting, 
and about these disorders specifically,” to provide the proper environment for 
B.K.D. and G.D.D. In addition, he stated that permanency was of the utmost 
importance to these children.
Parental 
Abilities
        According 
to the record, John’s parental abilities were virtually nonexistent. Despite 
the fact that he did not work during his marriage to Gwendolyn, he rarely cared 
for B.K.D. and G.D.D. At trial, John even admitted that he “didn’t really 
have that much quality time with the children.” He testified that during the 
marriage, he would usually stay at a neighbor’s house. In addition, when he 
was around the children, the record reveals that he was oftentimes physically 
and emotionally abusive toward them. Michelle Bradley, Gwendolyn’s aunt, 
testified that John would “smack the kids around because he wanted to see them 
hurt.”
        After 
the divorce, John testified that he exercised his visitation rights as often as 
possible. Gwendolyn, however, often refused to allow him to exercise his full 
visitation rights. Although John claimed that he had attempted to obtain legal 
assistance to enforce these rights, he presented no evidence that he had filed 
any paperwork with the court regarding this matter and was unable to name one 
attorney he had consulted.
        After 
CPS took the children into custody, John was allowed one hour of visitation with 
the children each week. Kerri Herrera, the children’s CPS worker, observed 
that John repeatedly spent more time visiting with her or the volunteer than he 
spent with his children. She also noted that the children were ready to leave 
before the visits ended. Frequently, she had to tell them to go back and finish 
the visit, and she also had to remind them to say goodbye to their father. 
Further, at the conclusion of the visits, the children were not upset or 
distraught.
        At 
trial, John admitted that he was not ready for the children to be placed with 
him in his home even after having seventeen months to secure appropriate 
accommodations. He testified that he had a three-bedroom home in need of repair. 
Some of the problems with the residence included a “gap” around the bathtub, 
a bathroom sink that needed to be remounted, and a hole in the wall. John 
testified that he had not had time to repair the residence, even during times 
when he was unemployed, because he had been “out doing twenty to forty miles a 
day on foot looking for a job.” The photographs of the residence taken by CPS 
shortly before the trial showed clutter and cat feces on the floor of B.K.D.’s 
room. Herrera testified that the home was not a clean, safe, or stable 
environment for the children.
Allegations 
of Sexual Assault
        In 
1998 and 1999, B.K.D. accused John of sexually abusing her. She stated that John 
had placed cream in her genital area. When interviewed by CPS, however, B.K.D. 
recanted and stated that John had not touched her since she was four years old. 
After interviewing John, CPS determined that the allegations were unfounded. 
Accordingly, no charges were ever filed. Then, in 2001, these same allegations 
resurfaced while B.K.D. was in foster care. After an investigation, however, the 
allegations were administratively dismissed because the issue had been resolved 
in the 1998 and 1999 investigations.
        B.K.D. 
was not the only young girl to accuse John of inappropriate conduct. He was 
barred from the Boys and Girls Club after a little girl reported that he had 
tried to look up her dress. In addition, at the time of trial, John was facing a 
possible eviction from his home due to allegations of inappropriate contact with 
his niece and two of her friends who often stayed with John at his residence.
        At 
trial, John admitted that he had difficulty controlling his sexual urges. He 
also testified that his first sexual encounter occurred when he was four years 
old. He stated that he had both oral and regular sex with a seven-year-old girl. 
Although John testified that he became addicted to sex, he characterized this 
contact as a “normal childhood curiosity.”
Other 
Acts or Omissions of the Parent
        As 
for John’s acts and omissions, the evidence reveals that he had difficulty 
managing his anger. In 1996, John threatened Gwendolyn with a knife and then 
threw the knife to her and told her to kill him. On several occasions he also 
threatened that, if he could not have the children, no one would. In March 1996, 
he held Gwendolyn down on the bed, choked her, and would not let her go. 
Gwendolyn managed to get away, and the next day she and the children left. 
Gwendolyn obtained a protective order and filed for divorce. Later, John was 
arrested and twice convicted of violating the protective order.
        The 
record also reveals that John suffered from severe psychological and emotional 
problems, including hypochondria, depression, and anxiety. He even admitted that 
he had checked himself into the Helen Farabee mental health facility on three 
separate occasions due to suicidal ideations. Further, he admitted that he was 
“argumentatively volatile” and often yelled during his marriage to 
Gwendolyn. His personality assessment revealed that he was impulsive; had 
difficulty with rules, regulations, and authority; and did not learn from his 
mistakes.
        After 
the divorce, John filed several reports with CPS complaining that Billy and 
Gwendolyn were over-disciplining the children and allowing Gwendolyn’s 
stepfather into their home despite B.K.D.’s allegations against him. Aside 
from these reports, however, John took no action to have the children removed 
from Gwendolyn’s custody.
        From 
1996 until the trial in this case, John worked, but he did not hold down a 
steady job. At the time of trial, John testified that he was working as a mental 
health aide making $5.75 per hour and paying his child support. The evidence 
revealed, however, that John owed a total of $8,654.05 in back child support. 
Although John testified that he was both psychologically and physiologically 
equipped to gain and maintain regular employment, he did not pay any child 
support from July 2000 until March 2001.
        In 
2001, after CPS removed the children from Gwendolyn’s home, the trial court 
ordered John to submit to a psychological evaluation and counseling. Although he 
submitted to the evaluation, he admitted that he failed to complete the required 
counseling sessions. He testified that his employment interfered with his 
ability to attend the counseling sessions and that he “felt that the 
counseling wasn’t doing [him] very good.”
        Further, 
at trial, John admitted that he was living with a woman who had had her parental 
rights to her children terminated in Michigan. When asked whether he planned to 
continue this relationship, John stated that the future of their relationship 
would depend on “what this Court says and these jurors say, as opposed to our 
relationship.”
 Plans 
for the Children
        Although 
CPS did not have an adoptive home ready for them at the time of trial, Herrera 
testified that she did not believe that it would be difficult to find an 
adoptive home for the children. In spite of the children’s emotional and 
behavioral problems, Herrera testified that her placement success rate was very 
high. She also stated that CPS would stipulate that all three children be placed 
together.
        John 
testified, however, that if he regained custody of B.K.D. and G.D.D. that he 
planned to improve his life by taking on an additional job and seeking a higher 
paying job with the State. He said nothing about caring for and meeting the 
emotional needs of his children.
        After 
reviewing the entire record in this case, we hold that the evidence is legally 
and factually sufficient to sustain the verdict. While we realize that it is 
more difficult to place older children and to keep three siblings together, in 
this particular case, we cannot say that this factor alone is enough to overcome 
the jury’s finding that termination is in the children’s best interest. 
Based on all the evidence discussed herein, we conclude that a reasonable trier 
of fact could have formed a firm belief or conviction that termination of 
John’s parental rights was in B.K.D.’s and G.D.D.’s best interest. 
Accordingly, we overrule John’s second issue.
Termination 
of Billy’s Parental Rights
        In 
two issues, Billy also contends that the evidence is legally and factually 
insufficient to establish that termination was in the best interest of A.C.W.
A.C.W.’s 
Desires
        A.C.W. 
was only two years old at the time of trial. Therefore, he was too young to 
express his desires.
A.C.W.’s 
Emotional and Physical Needs
        Due 
to A.C.W.’s age, there is no evidence in the record that he suffered from any 
emotional or behavioral disorders. The record does, however, reveal that A.C.W. 
was frequently ill and small for his age. After he was taken into CPS’s care, 
tubes were surgically inserted into his ears to extinguish a recurring ear 
infection.
Parental 
Abilities
        With 
regard to Billy’s parental abilities, the record reveals that he had an 
extensive history with CPS. During his relationship with another woman, Betty 
Brant, Billy had fathered four children. Although he contends that Betty’s 
first child was not his, Billy voluntarily relinquished his rights to this child 
after CPS took the child into protective custody pursuant to allegations that 
Betty had smothered the child with her breast. Their second child was born with 
barbiturates in its system. Despite Billy’s contention that his parental 
rights were involuntarily terminated, the record shows that he voluntarily 
signed a waiver of relinquishment. Billy’s parental rights to the third child 
were involuntarily terminated, however, after a jury concluded that Billy “had 
a mental or emotional illness or mental deficiency that rendered [him] unable to 
provide for the physical, emotional, or mental needs of the child.” Billy 
voluntarily relinquished his rights to his fourth child by Betty after the court 
appointed him possessory conservator, gave him visitation rights, and ordered 
him to pay child support.
        Before 
Billy became involved with Betty, he had been married and fathered a son. 
Despite his claims that he could have visited this child anytime he desired, 
Billy testified that he had only seen the child approximately eight times in the 
several years since his divorce. He admitted that he had never paid child 
support, but he also claimed that his ex-wife refused his money.
        After 
CPS removed A.C.W., Billy admitted that he lacked consistency in his visitation 
with A.C.W. He blamed this inconsistency on his truck driving job. After leaving 
this job, however, he continued to miss visitation. When asked about visitation, 
Billy stated that his visitation with A.C.W. was like dealing with a “stray 
animal. You don’t know that animal, you don’t know if that dog’s going to 
bite you or not, and they’re trying to keep a distance from you; its like 
they’re trying to protect theirself.”
        When 
Billy did visit A.C.W., there was very little interaction between them. Herrera 
testified that, during visitation, Billy “holds [A.C.W.] a lot of times and 
doesn’t want to let him down, and when [A.C.W.] is frustrated and wants to get 
down and play, [Billy] often will grab him or pull him.” Further, when the 
visits were concluded, A.C.W. was not upset or disturbed.
Alleged 
Sexual Abuse
        In 
February 2001, B.K.D. accused Billy of touching her “in the wrong place.” 
Billy was arrested and charged with aggravated sexual assault in July 2001. 
After he spent three months in jail, the grand jury found that there was 
insufficient evidence to prosecute the case, and the criminal charges against 
him were dismissed. CPS did not, however, dismiss its termination suit.
        Although 
Billy claimed that he did not sexually assault B.K.D., her medical examination 
revealed abrasions and lesions in her genital area that were consistent with her 
accusations. Even Gwendolyn’s expert witness agreed that the physical findings 
shown in Dr. Johnson’s report could be consistent with B.K.D.’s outcry of 
sexual abuse.
        Billy 
contends, however, that the abrasions were self-inflicted. Although there was 
some testimony that the abrasions may have been self-inflicted, Dr. Johnson 
testified that the abrasions that he observed were much too extensive to have 
been caused by self-stimulation or excessive scratching. Unlike the long, thin 
linear lesions caused by scratching, the lesions he observed were rounded and 
sporadic.
        Billy 
also contends that B.K.D.’s allegations against him were too similar to the 
allegations she made against Gwendolyn’s stepfather to be true. Initially, 
B.K.D. did accuse both men of fondling and licking her private parts. The 
alleged methods of fondling, however, were somewhat different. B.K.D. accused 
Gwendolyn’s stepfather of “rubbing” her in her “private parts [with] his 
tongue and his mouth.” She accused Billy of touching her in her “vagina with 
his fingers and his tongue.” Further, as time progressed she revealed more 
distinguishing details regarding the alleged abuse by Billy.
        There 
were also some discrepancies in B.K.D.’s story regarding whether she was 
asleep during the assault, whether the fondling was painful, and whether she had 
her panties on or off. Kathy Dudley, a supervisor with CPS, testified, however, 
that it is not uncommon for children who have been sexually abused to make some 
remarks that are incompatible with the rest of their statement. In spite of 
these contradictory statements, Dudley “felt that [B.K.D.] was able to give 
details and circumstances about the alleged sexual abuse, that a child who has 
not been victimized, would not have any way of knowing.” Three other experts 
also agreed that the inconsistencies in B.K.D.’s statement did not necessarily 
make her allegations of sexual assault untrue. Dr. Sabine testified that he 
would not be surprised to find inconsistencies in a child’s statement 
regarding sexual abuse because the trauma of the abuse often induces a 
dissociative experience within the child. In such instances, the abuse is often 
too difficult or embarrassing for the child to approach directly. When the child 
does report the assault, the report may seem inconsistent. In truth, however, 
the inconsistencies are merely a function of the child’s inability to directly 
express the trauma of the assault. Further, Dr. Edward Gripon, Gwendolyn’s own 
expert, testified that it is not uncommon for the statements of childhood 
victims of sexual assault to contain some inconsistencies. This is because, as 
time goes on, these children tend to recall and reveal more details regarding 
the assault. Camille Cleveland, another CPS worker, agreed that it is common for 
sexually abused children to “disclose more as time goes by, as they feel more 
comfortable and as they feel safe.”
Other 
Acts or Omissions
        Billy 
has a history of sexual deviance and abuse. As a child, Billy was sexually 
abused by his father and brothers. Then, in 1981, CPS investigated Billy for 
allegations that he had sexually abused his five-year-old nephew. When the child 
was removed from the home, Billy threatened the CPS caseworker assigned to the 
case. Later, CPS also investigated two more complaints against Billy made by two 
other nephews.
        At 
trial, Billy admitted that he had a bad attitude and temper. He testified that 
he had threatened John’s life in the presence of B.K.D. and G.D.D. Herrera 
also testified that Billy made a threatening statement against John to her. In 
addition, three to four months before the children were removed from the home, 
Billy told John in G.D.D.’s presence that if the children were taken away, 
someone was going to die.
        On 
two separate occasions, John filed a complaint with CPS alleging that Billy was 
excessively disciplining the children. Herrera observed Billy during his 
visitation with A.C.W. and testified that Billy was rough with A.C.W. She stated 
that Billy often grabbed or pulled A.C.W. in a manner that upset him.
        In 
addition, Billy failed to abide by the trial court’s temporary orders. He did 
not pay court-ordered child support and failed to complete the required 
psychological and drug evaluations. Further, in spite of the temporary orders 
that prevented Billy from visiting A.C.W. on the days that Gwendolyn visited 
B.K.D., Billy admitted that he occasionally drove Gwendolyn to these visits and 
that B.K.D. may have seen him. In fact, on at least one occasion, B.K.D. did see 
him pick up her mother from visitation. As a result, she became very upset.
Future 
Plans
        Again, 
at the time of trial, CPS did not have an adoptive home for A.C.W. CPS did not, 
however, believe that it would be difficult to find a placement for him. Herrera 
testified that her placement success rate was very high and that CPS would 
stipulate that A.C.W. be placed in the same adoptive home as B.K.D. and G.D.D. 
In addition, experts testified that it was very important that the children be 
permanently placed as soon as possible.
        With 
regard to Billy’s plans for A.C.W., he merely testified that he planned to 
gather up Gwendolyn, the children, and their belongings and drive as far away 
from Texas CPS as they could get. He did not discuss any particular changes that 
he would make if A.C.W. were to be returned to him. Further, he detailed no 
specific plans for A.C.W. in the event of reunification.
        Therefore, 
based on Billy’s history with CPS, history of sexual deviance and abuse, 
failure to abide by the trial court’s temporary orders, and B.K.D.’s 
allegations of sexual assault, we hold that the evidence is both legally and 
factually sufficient to support the verdict. Accordingly, Billy’s sole issue 
is overruled.
Conclusion
        Having 
overruled each of the appellants’ issues on appeal, we affirm the trial 
court’s judgment.
 
                                                                  PER 
CURIAM
 
PANEL 
F:   CAYCE, C.J.; HOLMAN and GARDNER, JJ.
 
DELIVERED: 
September 11, 2003
