                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00137-CV


In the Interest of B.R., B.R., and        §   From the 30th District Court
B.E.R., Children
                                          §   of Wichita County (11750-JR-A)

                                          §   January 4, 2013

                                          §   Opinion by Justice Gardner



                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court‘s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Anne Gardner
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-12-00137-CV


IN THE INTEREST OF B.R., B.R.,
AND B.E.R., CHILDREN




                                     ----------

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                     ----------

                          MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

     Appellants B.E.R. (Father) and C.R. (Mother) appeal the trial court‘s

judgment terminating their parental rights to their three children: Bethany,

Brittany, and Brandon.2    In three issues, Father argues that the evidence is

     1
      See Tex. R. App. P. 47.4.
     2
        We use aliases for all children named in our opinion to protect their
identities. See Tex. R. App. P. 9.8(b)(2).

                                         2
factually insufficient to support the jury‘s findings on statutory endangerment and

the children‘s best interest. Mother argues in one issue that the evidence is

legally and factually insufficient to support the jury‘s best interest finding. We

affirm.

                                   II. Background

      Mother and Father have five children: Blake, Bradley, Bethany, Brittany,

and Brandon.3 Bethany, Brittany, and Brandon were deposed in July 2011 and

again in 2012.      At the time of the 2012 depositions, Bethany was thirteen,

Brittany was twelve, and Brandon was ten.

      Trial was in March 2012, and the children‘s 2012 depositions were played

for the jury. Bethany testified that there had always been some sort of violence

between her parents. Bethany testified that she saw Father hit Mother, that there

were times when she could not see Father hit Mother but heard punching

sounds, and that Mother also hit Father. She testified that she was scared when

her parents fought and that she was afraid that Father would take their

arguments out on her. She also testified that she felt like her parents did not love

each other when they fought.

      Brittany testified that Father hit Mother and that she went to her room when

her parents fought.4 She testified that she had heard Mother cry when Father hit

      3
          Only Bethany, Brittany, and Brandon are involved in this appeal.
      4
       Bethany and Brittany testified that when they used the term ―fighting,‖ it
included hitting.


                                          3
her and that Mother had told her that she hit Father. She also testified that it was

scary when her parents fought and that she was afraid that she or her siblings

would get hurt. Brandon testified that he saw Father hit Mother several times.

He testified that he went to his room but that he still heard slapping sounds and

Mother crying. Brandon testified that he was scared that Mother would get really

hurt. He also testified that he saw Mother hit Father.

      In October 2009, the Department of Family and Protective Services (the

Department) removed Bethany, Brittany, Brandon, and Bradley after the police

and SWAT team arrested Father for assault family violence.          Police records

admitted at trial indicated that Bradley asked his girlfriend to call the police

because he heard what sounded like Mother being hit and choked. The records

further indicated that when police arrived at Mother and Father‘s home, all of the

lights were off, and no one answered the door. Father testified that after the

second doorbell ring, he looked out his window and saw a police officer in his

yard. Father also testified that he and Mother decided that the police were there

to arrest Mother.5 Father testified that he ―did not have a need to open up the

door‖ and that he went back to bed.6 Father testified that Mother then heard




      5
      Father testified that he thought the police were there to arrest Mother
because she had been to jail twice before.
      6
       When asked if he went to bed thinking that there was a police officer
hiding behind the bushes in his front yard, Father replied, ―Absolutely.‖


                                         4
police call his name and that he got out of bed and went outside. Father was

arrested when he exited the home.

      Several officers reported that they observed red marks on the right side of

Mother‘s neck and a bruise on her mouth that appeared to be covered with

make-up. Mother testified that she did not have any bruises. The police reports

stated that Mother was uncooperative, insisted that no one had been assaulted,

refused to allow police to photograph her, and expressed her hatred of police.

Father testified that he did not assault Mother.

      After the removal, the trial court ordered the Department to return Bethany,

Brittany, and Brandon to Mother through a six-month monitored return.7 Father

testified that he was ordered to leave the home during the monitored return and

that he lived with his mother, M.R., for three months and then lived alone in an

apartment for three months.8 Mother testified that she knew Father was not

allowed contact with the children, but she allowed the children to make videos on

her phone that she sent to Father. Bethany and Brittany testified that Mother

took them to see Father during the monitored return and told them not to tell

anyone, but Mother disputed that testimony. Bethany, Brittany, and Brandon

testified that no one was hit or choked, that there was not much screaming and



      7
      Mother testified that she agreed to allow Bradley to remain in the
permanent custody of the Department.
      8
      Father testified that he did not work during that time and that M.R. and
Mother paid his bills.


                                         5
yelling, and that things were better in their home when Father did not live with

them. Father testified that he returned to the home in May 2010.

      Mother testified that she left Father in September 2010 to have an affair

with a woman who she worked with.9 She testified that she told her girlfriend that

she left Father because she did not want to argue with him anymore. Bethany

testified that Mother left because she was tired of Father hitting her. The children

remained in the home with Father while Mother was gone from September until

October 2010. Mother testified that Father did not work while she was gone and

that she left less than $1,000 in a bank account for Father to use to support the

children.10

      Mother testified that she stayed in a hotel and then went to First Step, a

battered woman‘s shelter. She testified that she went to First Step for shelter,

not for the services they provide. The police were dispatched to First Step in

September 2010.       Mother told police she was staying at First Step due to

domestic violence issues involving Father and that Father had followed her from

Wal-Mart to First Step. According to the police report, Mother yelled at Father to

leave her alone, and he continued to approach Mother even after police ordered

him to stop. The police then pointed a gun at Father and ordered him back to his

vehicle. The report also stated that Father had a knife in his front pocket and a

      9
        Mother testified that this was her second affair but her first homosexual
relationship.
      10
          Mother testified that she supported herself with her paycheck.


                                          6
metal baseball bat in his vehicle. Mother denied that she yelled at Father and

testified that she did not see a knife or baseball bat or the police point a gun at

Father. Mother also testified that she was not concerned when Father followed

her to First Step.

      In October 2010, Bethany told her school counselor that Father had ―ʻkind

of‘ choked her,‖ and the Department again removed the children from the home.

Bethany testified that she also told her school counselor that she was afraid of

Father and that Father was physical with her.           Father testified that when

Department investigators came to his house, he would not allow them to speak to

his children unless he was in the room. He also testified that he told the children

not to talk to the Department unless he was present and that he instructed them

to call him if the Department came to their school. Father testified that he took

the Fifth Amendment multiple times at the adversary hearing when asked about

hitting and choking his children. He testified that he was then ordered to have no

further contact with the children.

      Mother testified that she and Father agreed that the children were not to

associate with friends outside of school if Mother and Father were not present.

Mother testified that they did not allow the children to stay overnight at a friend‘s

house, have friends visit the home, attend birthday parties, talk on the telephone

unless it was to a family member, or go anywhere without Mother and Father

watching them. Father testified that he did not allow the children to answer the

door at his house, play in the front yard, or play with friends unless he could see


                                         7
them. Bethany testified that her parents only allowed her to answer the door for

her brothers and that she was not allowed to answer the door for the police. She

testified that she had never been to a birthday party and that she had never had

a friend visit her house. Bethany testified that she did not have a life outside her

parents‘ home and that she and her siblings were kept in isolation when they

were not in school. Brittany testified that Father would not allow her to spend the

night at a friend‘s house, talk on the phone to friends, or answer the door at their

house.

      Bethany acknowledged that her 2011 and 2012 testimonies differed and

that she did not tell the truth in her 2011 deposition.11 In her 2011 deposition,

Bethany stated that Father hit her only in August 2010, but she stated in her

2012 deposition that Father also hit her in September and October 2010 and that

he hit her before Mother left in September 2010. She also testified during the

2012 deposition that she did not know how many times Father had hit her

because he hit her ―all the time.‖ During the 2011 deposition Bethany testified

that Father had choked her twice, but she testified in 2012 that Father had

actually choked her over five times. Bethany also testified in 2012 that Father

had choked, punched, and slapped her in the face, stomach, arm, and back.

She testified that Father told her it was her fault that he had to choke her, that

Father had choked her because she smiled at a boy in the grocery store, and

      11
        Bethany suggested that she was untruthful in her first deposition because
she did not remember or did not want to remember.


                                         8
that he had never apologized to her for hurting her.12 Father testified that he was

upset with Bethany when she winked and smiled at a boy in the grocery store,

but he denied assaulting her. Bethany also testified that she saw Father hit

every one of her family members and that Father hit her more than the other

children, that she and Father had argued almost nightly, and that Father had told

her not to tell anyone about the arguments and fighting.

      Brittany testified during her 2012 deposition that she saw Father hit

Bethany and that he hit Bethany the most out of the three children. 13 Brittany

testified that she was reading a book while Father was talking and that he took

the book out of her hand and hit her on the shoulder with it. She also testified

that Father did not want her to tell people what happened in their home and that

he told her, ―[W]hatever is in this house stays in the house.‖

      Brandon testified that Father tried to spank him because he did not clean

his room. He testified that when he tried to avoid the spanking, Father threw him

on the couch and choked him with both hands. Brandon testified that he could

not breathe when Father choked him and that it hurt and scared him. He testified

that Father had not apologized for choking him. Brandon also testified that he

saw Father hit Bethany and choke his oldest brother Blake.


      12
        Bethany testified during the 2011 deposition that she remembered
smiling at a boy but did not remember that Father choked her.
      13
        Brittany acknowledged that she testified in 2011 that she had not seen
Father hit Bethany.


                                         9
      Bethany testified that she first disclosed that Father checked her to see if

she was having sex in September 2011. Bethany and Brittany each testified that

Father told them to come into his bedroom, remove their pants and underwear,

and lie down on his bed.14 They testified that Father told them to spread their

legs and that Father then looked at their private areas below their waists. 15

Bethany testified that Father told her he checked her because he thought she did

something with a boyfriend, and Brittany testified that Father told her he checked

her to see if she had sex with a boy.

      Bethany testified that Father first checked her when she was ten and that

he checked her twice a month. Brittany testified that she was in elementary

school when Father first checked her and that she did not remember how often

he checked her. She testified that she initially told CPS that Father did not check

her because she was embarrassed and afraid that Father would find out if she

told the truth. Brittany testified that Father told her not to tell anyone that he

checked her. She testified that she did not ask Father to stop checking her

because she was afraid to make him angry.




      14
        Brittany testified that Father checked her and Bethany separately and
that she did not remember if Bethany was in the room when she was checked.
Bethany testified that she saw Father check Brittany twice a month.
      15
        Bethany and Brittany each affirmatively answered questions that their
private area is the part on their body below their belly button and above their
knee.


                                        10
      Father denied checking Bethany and Brittany. He testified that he talked to

Bethany about sex when she was nine and that he asked her if she was having

sex when she was eleven and when she was twelve, but he testified that she

denied having sex both times. Bethany testified that she was not having sex.

She also testified that Father wanted to put her on birth control when she was ten

because he was afraid she would get pregnant. Father testified that he asked

Brittany about sex when she was ten and that he asked her when she was

eleven if she was having sex. Brittany testified that she told Father she was not

having sex but that he did not believe her.

      Father testified that he had not worked since February 2011 and had not

applied for a job since May 2011. He testified that he worked for the Electra

Police Department from 1994 until 1995 and then worked for the Forest Hill

Police Department from 1995 until 1999.16 He testified that the Forest Hill Police

Department fired him in 1999.        On June 4, 1999, the Forest Hill Police

Department placed Father on indefinite suspension for employee misconduct.

The indefinite suspension letter stated that Father had confronted Arlington

police officers on November 14, 1998, attempted to influence them in Mother‘s




      16
        Father testified that he was an employee with the Electra Police
Department starting in the summer of 1995 after first serving as a volunteer
reserve employee.


                                        11
arrest, and was untruthful to the internal investigating officer concerning the

incident.17 Father denied having done so.

      The jury heard other evidence of Father‘s disciplinary history at the Forest

Hill Police Department. When a tow truck driver attempted to repossess Father‘s

vehicle, Father approached the driver and threatened to shoot him.            The

Arlington police arrived, and Father displayed his weapon and identified himself

as a Forest Hill police officer.   On a separate occasion, an Aaron‘s Rental

employee attempted to repossess Father‘s personal property, and Father

became physical with the employee.18 Father also had five other disciplinary

incidents while working for Forest Hill Police Department.

      Father testified that he had not tried to obtain another law enforcement job

and that he was unemployed from 1999 until 2005 because he had problems

with depression, anxiety, and headaches. He testified that he held various other

jobs for a few months at a time but that he quit because they were either too

stressful or not in a management position. Mother testified that Father had quit

two jobs because she and Father believed the jobs were beneath his capabilities.

Father testified that he did not feel well enough to get a job, but that he would

      17
         Forest Hill Police Department did not seek disciplinary action for this
incident because more than 180 days had elapsed since it occurred. Mother
testified that the Arlington police lied about the incident.
      18
        Father testified that he did not assault the Aaron‘s Rental employee but
had a disagreement with him. He asked the employee to leave, but when the
employee refused, Father ―exited [his] home and [the employee] was just in the
way of the door.‖


                                        12
have motivation to find a job if he got his children back. Father testified that in

December 2010 he was court-ordered to obtain gainful employment and agreed

that he had not come close to following that order. He testified that he had

known about the trial since January 2012 and that he had not tried to get a job.

He also testified that he had not tried to find a job because he suffered from

major depression.

      Father testified that he first went to Helen Farabee (MHMR), the local

mental health center, in April 2001 and was diagnosed with Posttraumatic Stress

Disorder and depression. Father testified that he met with Dr. Decena once

every three months from 2001 until 2004. He testified that he stopped seeing Dr.

Decena in 2004 and did not see another mental health professional until March

2011. He testified that he went back to MHMR in March 2011 and saw Kevin

Thompson once a week until November 2011.19 Father testified that he stopped

seeing Thompson because he had completed the behavior plan Thompson had

created to help him cope with depression. However, Thompson testified that he

stopped seeing Father because the staff felt like Father humored them by going

through the motions.

      Father testified that he applied for social security benefits in August 2011

and that he listed major depression as his disability with a disability start date of

March 2011.     He testified that his application for social security was denied.

      19
       Thompson testified that he is a Licensed Professional Counselor and a
Licensed Professional of the Healing Arts.


                                         13
Father also testified that he answered discovery in May 2011 and did not

disclose that he suffered from depression and that he never asked CPS to get

him help for his depression.

      Father testified that he was arrested by the Arlington Police Department for

harboring Mother, but he denied that he had harbored her. The Arlington Police

Department‘s Arrest Warrant Affidavit states that on May 29, 1999, Father

shouted at officers to get out of his home and that he aggressively approached

an officer, grabbed his arms, and pushed him backwards.            Father denied

grabbing or struggling with the officer.

      At the time of trial in March 2012, Mother was in Dawson State Jail serving

a fourteen-month sentence for a probation violation.20 Mother had an extensive

criminal history and testified that she had several charges and convictions for

theft because she ―had a problem . . . [w]anting more than [she] really needed at

the time.‖ She testified that she had served a previous fourteen-month sentence

at Dawson State Jail. Mother could not recall all of her criminal charges and

testified that she did not know how many times she had been charged with theft.

She added that her criminal history did not contain convictions for acts of

violence and that her convictions were mostly for theft. Mother testified that she

wrote 298 bad checks totaling $27,000.


      20
        Mother‘s initial charge was fraudulent use and possession of identifying
information. Mother‘s probation was revoked because she committed a new theft
by check offense while on probation.


                                           14
      Department caseworker Linda Johnson testified that she thought Mother

was going to jail in December 2010 and that she developed Mother‘s service plan

accordingly.21 Johnson testified that Mother complied with most of her service

plan; Mother signed the HIPAA release, participated in available services in jail,

summarized the parenting information sent to her in jail, and underwent a

psychological evaluation. Mother testified that she took a parenting class but

refused to discuss domestic violence because she felt that her parenting trainer

was investigating her and trying to place criminal charges on her and Father.

Mother also testified that there was no domestic violence in her home and that

she would not discuss domestic violence.         Johnson testified that the most

important part of Mother‘s service plan was the requirement that she obtain and

maintain safe housing that was free from domestic violence once she was

released from jail.

      Mother testified that she told Johnson that she had no intention of leaving

Father. Johnson testified that she previously told Mother that the Department‘s

position was that it would not return the children to her as long as she was living

with Father. Mother testified that the Department indicated to her that it wanted

her to end her marriage to Father and that she made it clear to the Department

that she had no intention of ending her marriage. She then testified that Johnson

never told her that she had to divorce Father but that Johnson had told her that


      21
        Mother did not go to jail until March 2011.


                                        15
there could come a point when she would have to choose between her husband

and her children, since the Department would have to remove the children from

the family violence. Johnson testified that the only portion of Mother‘s service

plan that she had not complied with was maintaining a home free from domestic

violence. She testified that this noncompliance was enough to determine that

Mother failed to comply with her service plan.

      Johnson testified that she developed Father‘s service plan and discussed

the plan with him in December 2010. Johnson testified that Father complied with

parts of his service plan. Father complied with the law, refrained from committing

illegal acts, had not allowed people with a criminal or drug lifestyle in his home,

provided information on people living in his home to CPS for them to run

background    checks,    completed     parenting    classes,   and   completed   a

psychological evaluation.22 However, Johnson testified that Father did not notify

her of his change in phone number, did not keep in frequent telephone contact

with her, and did not regularly meet with her. Johnson testified that Father did

not complete a budget form or sign his MHMR release.23 She also testified that

Father failed to obtain and maintain a legal source of income.

      Johnson testified that she first heard of Father‘s extensive MHMR issues

during trial. Johnson testified that she met with Father in April 2011 and that he

      22
       Johnson testified that Father‘s psychological evaluation from the previous
case carried over and counted for the current case.
      23
        Father testified that he did sign the release.


                                         16
did not mention that he went to MHMR the previous month and did not disclose

his major depressive or posttraumatic stress disorders. She testified that Father

was to attend counseling with Dr. Vandehey and receive intense education in the

effects of domestic violence on the family, but Father did not attend the

sessions.24   She also testified that she first heard that Father saw Kevin

Thompson during trial and that Thompson is not the court-ordered counselor

mentioned in Father‘s service plan.

      Father called Robert Campbell and Brian Brunker as character witnesses

at trial. Robert Campbell, a family friend, testified that the children‘s relationship

with their parents appeared normal. Campbell testified that when he spent time

with the family he did not notice anything out of the ordinary and that the children

had never alleged that anything had happened to them while in their parents‘

care. Campbell then admitted that he did not know the children‘s names or ages

or which children were involved in the termination case. Campbell also testified

that he was never around the children without Mother and Father present and

that he had only been to their home around six times in the past twenty years.

      Brian Brunker, a Wichita Falls police officer, testified that he lived next door

to the family. Brunker testified that he had seen the children play in the backyard

and that he had never observed anything unusual about their demeanor. He

      24
        Johnson testified that Father saw A.J. Madden in the previous case and
that Father stated he did not like Madden. Johnson arranged for Father to see
Dr. Vandehey, but when Father did not attend an appointment, Dr. Vandehey
refused to see Father.


                                         17
testified that the children had never approached him and claimed that their

parents abused them and that he had never noticed any marks or cuts on the

children that appeared to be the result of physical abuse. However, Brunker

testified that the only conversations he had with the children were when they had

asked permission to retrieve tennis balls from his backyard. Brunker testified that

he did not know that Mother had written bad checks, that Father was indefinitely

suspended by Forest Hill Police Department, what went on inside Father‘s

household, or the specifics of the SWAT team incident. Brunker also testified

that he did not have a close relationship with Bethany, Brittany, or Brandon and

that he did not know much about Father.

         Father testified that his biggest problem in the past was his overwhelming

sense of loss but that he was now positive about the future and believed that his

family was salvageable. Father testified that he felt that he and Mother could

provide for the children emotionally and physically. He also testified that the

children would have to become reaccustomed to the home environment and his

rules.

         Father testified that ―there [were] a lot of lies within [Bethany‘s] deposition.‖

He testified that all of the allegations against him were false and that he did not

think this should be a termination case. He also testified that termination was not

proper in a case where the parent routinely looked at female children‘s genitalia,

beat and choked a child, or beat and choked the other parent.                 He further




                                            18
testified that termination was not proper in a case where a parent routinely

committed criminal behavior and had been sent to prison.

      Mother testified that M.R. lived with Father and paid his bills and rent.

Father testified that M.R. was sixty-three, worked full-time, had stomach and lung

cancer, and received chemotherapy treatments every two weeks.               Father

testified that M.R. will assist them when Mother is released from jail but that he

had not made arrangements for where M.R. would live. He testified that he did

not have a plan for living arrangements if his children came home with him.

      Mother testified that she believed her family was salvageable.          She

testified that the way she parented was the correct way for her children and that

the children wanted more freedom and had ―ma[de] everything up.‖ She testified

that Bradley fabricated the allegations of family violence that led to the first

removal. She testified that Bethany and Brittany lied about Father checking them

because they did not like the rules at home. She testified that she did not believe

her daughters and did not believe that Father had ever checked them. Mother

testified that she would deal with Bethany‘s and Brittany‘s allegations that Father

checked them by going to counseling because she believed that Father never

checked the children. Mother also testified that she was surprised that Brandon

discussed violence between her and Father and between Father and Bethany.

      Bethany, Brittany, and Brandon testified that they love and miss Mother.

They also testified that they love Father even after everything he had done.

Brittany and Bethany testified that they did not want to live with Father and that


                                        19
they did not feel safe living with him. They testified that they would live with

Mother but that she would just go back to Father or would let them see Father.

Bethany and Brittany testified that they wanted Mother‘s and Father‘s parental

rights terminated. Brandon also testified that he did not want to live with Mother

or Father.

      Bethany testified that she felt that Mother began choosing Father over the

children when he moved back in after the 2009 removal. She testified that she

wished Mother would choose her over Father but that she did not think Mother

ever would.   Bethany testified that she did not think that Father would ever

change. Bethany testified that she did not want to go home; that she wanted to

be adopted; that she now participates in basketball, track, and volleyball; that she

is happy in her current placement; and that she wants to live there permanently.

She also testified that she understood that there was no guarantee that her

current foster parents would adopt her but that she still wanted Mother‘s and

Father‘s parental rights terminated. Brittany testified that she wants Mother‘s

rights terminated partly because she kept going back to Father. She testified that

she wanted Father‘s rights terminated because he was strict, because he hit

people, and because she is afraid of him at times.

      Johnson testified that the children‘s current foster parents want to adopt

them as a sibling unit and that the Department intends for the children‘s current

foster parents to adopt them if the parents‘ rights are terminated.          Court-

Appointed Special Advocate (CASA) Gary Cardwell testified that he had


                                        20
observed Bethany, Brittany, and Brandon in their current placement and that they

appeared happy and well-adjusted. Cardwell testified that, in his opinion, it is in

the children‘s best interest for Mother‘s and Father‘s parental rights to be

terminated. Johnson also testified that it is in the children‘s best interest to have

Mother‘s and Father‘s parental rights terminated and that it would impair the

children‘s physical and emotional development if Mother or Father were

appointed as managing conservator.

                            III. Standards of Review

      In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child‘s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, ―[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.‖ In re E.R., No. 11-0282, 2012 WL 2617604, at *1

(Tex. July 6, 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct.

1388, 1391–92 (1982)).       We strictly scrutinize termination proceedings and

strictly construe involuntary termination statutes in favor of the parent.       Id.;

Holick, 685 S.W.2d at 20–21.

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a).

Due process demands this heightened standard because ―[a] parental rights


                                         21
termination proceeding encumbers a value ‗far more precious than any property

right.‘‖ E.R., 2012 WL 2617604, at *1 (quoting Santosky, 455 U.S. at 758–59,

102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re

J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination

and conservatorship). Evidence is clear and convincing if it ―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 (West 2008).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may

not be based solely on the best interest of the child as determined by the trier of

fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);

In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on

reh‘g).

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We

review all the evidence in the light most favorable to the finding and judgment.

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder


                                          22
could have done so. Id. We disregard all evidence that a reasonable factfinder

could have disbelieved.     Id.    We consider undisputed evidence even if it is

contrary to the finding.     Id.    That is, we consider evidence favorable to

termination if a reasonable factfinder could, and we disregard contrary evidence

unless a reasonable factfinder could not. Id.

       We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder‘s determinations as long as they are not unreasonable. Id. at

573.

       In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder‘s findings and do not supplant the verdict with our own.         In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent violated subsection (D), (E), or (O) of section 161.001(1) and that the

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

child. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

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 in the truth of its

finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.




                                         23
                             IV. Statutory Endangerment

      Father argues in his first and second issues that the evidence is factually

insufficient to support the jury‘s statutory endangerment findings.

A. Applicable Law

      ―Endanger‖ means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). Under section 161.001(1)(D), it is necessary to examine the evidence

related to the environment of the child to determine if the environment was the

source of the endangerment to the child‘s physical or emotional well-being.

J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an

environment that endangers the physical and emotional well-being of a child. In

re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ).              For

example, abusive or violent conduct by a parent or other resident of a child‘s

home may produce an environment that endangers the physical or emotional

well-being of a child. See id. at 776–77; Ziegler v. Tarrant Cnty. Child Welfare

Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref‘d n.r.e.).

      Under section 161.001(1)(E), the relevant inquiry is whether evidence

exists that the endangerment of the children‘s physical well-being was the direct

result of the parent‘s conduct, including acts, omissions, or failures to act. See

J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).

Additionally, termination under subsection (E) must be based on more than a

single act or omission; the statute requires a voluntary, deliberate, and conscious


                                        24
course of conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam.

Code Ann. § 161.001(1)(E).      It is not necessary, however, that the parent‘s

conduct be directed at the children or that the children actually suffer injury.

Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the

children‘s well-being may be inferred from parental misconduct standing alone.

Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort

Worth 2004, pet. denied). As a general rule, conduct that subjects children to a

life of uncertainty and instability endangers the children‘s physical and emotional

well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998,

pet. denied).

B. Discussion

      Father argues that his family violence did not endanger Bethany, Brittany,

and Brandon but that it instead had ―a salutary effect‖ on them. He argues that

there is no evidence that the children suffered any injuries other than transitory

ones and that his discipline had no long-term, adverse effects on the children.

The Department responds that there is ample evidence that Father endangered

the children, and it points to evidence of Father‘s lengthy history of domestic

violence. Specifically, the Department points to evidence that Father assaulted

Mother on an ongoing basis, that the children witnessed the abuse, and that

Father also assaulted the children, and it urges that Father‘s disciplinary

techniques far exceeded the bounds of what society might describe as those

employed by a strict parent.


                                        25
      There is also evidence that Father checked Bethany‘s and Brittany‘s

genital areas for evidence of sexual activity. ―It is beyond question that sexual

abuse is conduct that endangers a child‘s physical or emotional well-being.‖ In re

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

other grounds by J.F.C., 96 S.W.3d 256 (Tex. 2002); see also R.W., 129 S.W.3d

at 742. Evidence of sexual abuse of one child is sufficient to support a finding of

endangerment with respect to other children. See In re K.M.M., 993 S.W.2d 225,

227 (Tex. App.—Eastland 1999, no pet.). Father argues that his actions did not

cause his daughters physical harm, but he ignores the emotional or

psychological impact of his conduct.

      Overall, Father‘s arguments are little more than efforts to minimize the

considerable evidence supporting the jury‘s endangerment findings. While the

evidence is in many respects conflicting given his and Mother‘s denials at trial,

the jury is the sole judge of the credibility of the witnesses and the weight to be

given to their testimony. See J.P.B., 180 S.W.3d at 573; see also In re T.N., 180

S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.) (―[T]he fact finder, as

opposed to the reviewing body, enjoys the right to resolve credibility issues and

conflicts within the evidence. It may freely choose to believe all, part, or none of

the testimony espoused by any particular witness.‖).         Contrary to Father‘s

contentions, the jury could have determined that Father endangered Bethany,

Brittany, and Brandon.




                                        26
       Applying the appropriate standards of review, we hold that the evidence is

factually sufficient to support the jury‘s findings that Father engaged in conduct or

knowingly placed Bethany, Brittany, and Brandon with persons who had engaged

in conduct that endangered their physical or emotional well-being and that he

knowingly placed or knowingly allowed Bethany, Brittany, and Brandon to remain

in conditions or surroundings that endangered their physical or emotional well-

being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E); see also H.R.M., 209

S.W.3d at 108. We thus overrule Father‘s first and second issues.25

                                  V. Best Interest

       Father argues in his third issue that the evidence is factually insufficient to

support the jury‘s finding that termination of his parental rights is in the children‘s

best interest. Mother argues in her sole issue that the evidence is legally and

factually insufficient to support the jury‘s finding that termination of her parental

rights is in the children‘s best interest. See Tex. Fam. Code Ann. § 161.001(2)

(requiring clear and convincing evidence ―that termination is in the best interest of

the child‖).




       25
        Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination. In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus
need not address the sufficiency of the evidence under section 161.001(1)(O).
See id.; see also Tex. R. App. P. 47.1.


                                          27
A. Applicable Law

      There is a strong presumption that keeping a child with a parent is in the

child‘s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child‘s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).

Nonexclusive factors that the trier of fact in a termination case may use in

determining the best interest of the child include:

      (A)    the desires of the child;

      (B)    the emotional and physical needs of the child now and in the
             future;

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

      (D)    the parental abilities of the individuals seeking custody;

      (E)    the programs available to assist these individuals to promote
             the best interest of the child;

      (F)    the plans for the child by these individuals or by the agency
             seeking custody;

      (G)    the stability of the home or proposed placement;

      (H)    the acts or omissions of the parent which may indicate that the
             existing parent-child relationship is not a proper one; and

      (I)    any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

These factors are not exhaustive; some listed factors may be inapplicable to

some cases; other factors not on the list may also be considered when



                                         28
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child.   Id.   On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

B. Discussion

      Father contends that his ―hands-on approach to family discipline‖ has not

caused his children any substantial injuries. Father also contends that Bethany

and Brittany have not suffered physically or mentally from the sexual inspections.

Mother points to the strong presumption that keeping children with their parent is

in the children‘s best interest, and she argues that she has always provided her

children with a safe environment. Mother contends that her children have not

suffered any physical harm, that there is no domestic violence in her home, and

that Bethany lies and manipulates others. Mother further contends that while she

does have a criminal history, she used the stolen money to provide for her family.

      Exposure to domestic violence is relevant when considering a child‘s best

interest. See In re R.R., Jr., 294 S.W.3d 213, 235 (Tex. App.—Fort Worth 2009,

no pet.); In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.).

A parent‘s extensive criminal record also reflects on the best interest of the

children in maintaining a relationship with that parent.     See In re V.V., 349

S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc);

see also In re J.B.W., 99 S.W.3d 218, 229 (Tex. App.—Fort Worth 2003, pet.


                                       29
denied) (holding that incarceration is one factor courts can consider when

determining the best interest of the children in a termination case). Moreover, a

parent‘s noncompliance with a service plan may also affect a factfinder‘s

consideration of the children‘s best interest. M.R., 243 S.W.3d at 821.

      The jury heard that Bethany, Brittany, and Brandon love Mother and

Father. But the jury also heard Bethany testify that she wants Mother‘s and

Father‘s parental rights terminated, that she does not want to go home, and that

she wants to be adopted. Brittany testified that she wants Mother‘s and Father‘s

parental rights terminated, and Brandon testified that he does not want to live

with Mother or Father. The jury heard evidence that the children appear happy

and well-adjusted in their current placement, that their current foster parents want

to adopt them, and that the Department intends for the children‘s current foster

parents to adopt them if their parents‘ rights are terminated.

      In contrast, the jury heard evidence that Father has choked, punched, and

slapped the children and that he checked Bethany‘s and Brittany‘s genital areas

for evidence of sexual activity. The children do not feel safe living with Father.

Mother has a lengthy criminal history and was serving her second fourteen-

month sentence at the time of trial. Also, Mother has not acknowledged Father‘s

domestic violence or abuse of the children and seems intent upon living with

Father upon her release from jail.      Mother and Father denied all allegations

against them and argued that their children were lying.




                                         30
         The record contains evidence of Father‘s history of physical and sexual

abuse and his pattern of denial and refusal to adjust his conduct, even when

faced with the possibility of having his parental rights terminated. The record

also reflects Mother‘s history of domestic violence directed at Father, her

unwillingness to comply with her service plan, and her lengthy criminal history.

Applying the appropriate standards of review, we hold that the evidence is

factually sufficient to support the jury‘s finding that termination of Father‘s

parental rights is in Bethany‘s, Brittany‘s, and Brandon‘s best interest.       See

H.R.M., 209 S.W.3d at 108 (discussing factual sufficiency standard of review).

We also hold that the evidence is legally and factually sufficient to support the

jury‘s finding that termination of Mother‘s parental rights is in the children‘s best

interest. See id.; see also J.P.B., 180 S.W.3d at 573 (discussing legal sufficiency

standard of review). We therefore overrule Father‘s third issue and Mother‘s sole

issue.

                                     VI. Conclusion

         Having overruled Father‘s and Mother‘s respective dispositive issues, we

affirm the trial court‘s judgment.




                                                      ANNE GARDNER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: January 4, 2013


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