                  In the
             Court of Appeals
     Second Appellate District of Texas
              at Fort Worth
           ___________________________
                No. 02-19-00066-CV
           ___________________________

IN THE INTEREST OF A.B.-G. AND A.B.-G., CHILDREN



        On Appeal from the 231st District Court
                Tarrant County, Texas
            Trial Court No. 231-583258-15


         Before Kerr, Birdwell, and Womack, JJ.
         Memorandum Opinion by Justice Kerr
                         MEMORANDUM OPINION

      After a bench trial, the trial court terminated Mother’s parental rights to her

then-11-year-old twins, Austin and Angela.1 On appeal, Mother asserts that the

evidence does not support the trial court’s best-interest and grounds findings. We

affirm.

                                  The Findings

      The Court found by clear and convincing evidence that

      • termination of the parent–child relationship between Mother and the
        children was in the children’s best interest. See Tex. Fam. Code Ann.
        § 161.001(b)(2).

      • Mother had knowingly placed or knowingly allowed the children to remain
        in conditions or surroundings that endangered their physical or emotional
        well-being. See id. § 161.00l(b)(l)(D).

      • Mother had engaged in conduct or knowingly placed the children with
        persons who engaged in conduct that endangered the children’s physical or
        emotional well-being. See id. § 161.00l(b)(l)(E).

      • Mother had been convicted or had been placed on community supervision,
        including deferred-adjudication community supervision, for being criminally
        responsible for the death or serious injury of a child under penal code
        section 22.04. See id. § 161.00l(b)(l)(L); Tex. Penal Code Ann.
        § 22.04 (“Injury to a Child, Elderly Individual, or Disabled Individual”).




      We identify the children by fictitious names and their mother simply as
      1

Mother. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).


                                         2
                                       Background

   A. Procedural

       1. The Department removed Mother’s children.

       Nine-year-old Austin and Angela came into the Department of Family and

Protective Services’ care in November 2016 after Austin appeared at school with a

bruised eye and attributed it to Mother’s hitting him with a belt. The school nurse

observed additional bruising on Austin’s back and arm.

       2. Forensic interviewers met with the children.

          a. Austin described Mother’s hitting him with a belt.

       A forensic interviewer at the Alliance for Children recorded her November

2016 interview with Austin during which he said that Mother had hit him “hard” with

a leather belt in the face, striking his eye and causing it to swell. Initially, he described

how Mother had hit him once on the back and how his backbone felt like it had been

broken; later he said that she had hit him several times on the back. When shown

photos of his injuries, Austin acknowledged other marks that Mother had left on his

arms and shoulder from the same incident.

       Austin reported only one other similar incident, in which Mother had struck

him twice on the palm of his hand. He acknowledged also having seen Mother give

his sister Angela a “whupping.” Despite everything, Austin expressed concern about

Mother’s getting in trouble.




                                             3
          b. Angela also described Mother’s beltings.

      A different forensic interviewer at the Alliance for Children interviewed Angela

on the same day. Angela explained that Austin had misbehaved at the mall and that a

few days later Mother had hit him with a belt. While Angela was in the bathroom at

their home, she heard Austin screaming and Mother telling him to sit still. Angela

then heard approaching footsteps; Mother entered the bathroom, swung the belt onto

a rack, and helped Angela with her bath. The next morning, Angela saw that Austin

had a big bump on his eye, and when she asked him what had happened, Austin’s

only response was, “Whupping.”

      Angela explained that when Mother treated Austin this way, Angela usually hid

in her bedroom. When asked how often she had to hide, she responded, “A lot.” She

hid because she was scared and because she hated it when Mother took a belt to

Austin.

      And Austin was not the only child whom Mother hit with a belt. Angela

described a time when she was riding her scooter and talking too much: Mother took

off her belt, chased Angela into a parking lot, and struck her in the back. After Angela

tried to hide in the bushes, Mother “whipped her belt way up high and swung through

the bush,” leaving a “scar” on the side of Angela’s face. On another occasion, Angela

took the last slice of a pizza, so Mother grabbed the belt and struck her, leaving marks




                                           4
on her arm and leg. Another time, Mother hit Angela with a metal spatula, causing

Angela to bleed; after that, Mother stopped using a spatula.2

       3. After being indicted, Mother pleaded guilty to injury to a child.

       Indicted in 2017 for injury to a child, a third-degree felony, Mother entered a

plea-bargain agreement and was placed on deferred-adjudication community

supervision.

       4. Mother’s monitored return failed.

       In April 2018, the trial court signed an “Order for Monitored Return” that set

out a transitional period before placing the children back in Mother’s home. But

during the specified period, the trial court vacated the monitored-return order. 3

       5. The Department then sought termination.

       The case proceeded to a bench trial in February 2019.

   B. Evidentiary

       1. Mother had a history of physically abusing her oldest child.

       Mother had three children. Austin and Angela, the youngest, had an older half-

sibling, Sister, who was 22 years old at the time of trial.




       Both recorded interviews were admitted at trial.
       2


       3
        At trial, the Department did not explain why the transitional monitored return
failed, but the affidavit supporting the Department’s “Motion to Vacate the
Transition Return” mirrored the same concerns expressed at trial as the bases for
terminating Mother’s parental rights.


                                             5
      Mother had a history with the Department involving Sister, too: in 2007, the

Department removed Sister (then aged 10 or 11) due to negligent supervision, and in

2009 after Mother had completed her services, the Department returned Sister to

Mother. But four months later the Department removed Sister again, this time for

physical abuse. After that second removal, Sister remained in foster care—at Sister’s

own request—until she aged out. Mother’s psychological evaluation reported that

Sister “had made repeated outcries of serious physical and psychological abuse from

her mother” and that “[i]t [was] unusual for a child not to want to return to a parent[,]

and this [spoke] volumes.”

      2. Mother acknowledged physically abusing Austin.

      Regarding     Austin    and   Angela’s    November      2016       removal,   Mother

acknowledged striking Austin with a belt, pleading guilty to injury to a child, and being

placed on deferred-adjudication community supervision. And at trial, Mother agreed

that striking Austin was not discipline but was, instead, child abuse.

      3. Mother completed most of her services, but doubts persisted.

      At trial, the Department did not dispute that Mother had completed most of

her services, and Mother assured the court that she would not hit her children again:

“My plan is to not even ever think about spanking my children ever again. . . . I have

verified that with several police officers—that it is the law. I never will spank my

children ever again.” From her services, Mother asserted that she had learned a new

approach: “My plan is to use communication to speak with them and let them know

                                            6
and to reiterate again and communicate and reiterate and talk.” But Mother also

admitted that five times since 2006 the Department had found “reason to believe”4

that she had physically abused her children, that each time she had promised not to do

it again, and that she did it again anyway. When asked why anyone should believe her

now, Mother responded, “[S]panking is not against the law. However, spanking does

bring about an environment where CPS is called, the police are called[,] and my

children are removed from the home.” She continued, “So going through that several

times, I have learned other ways of communication . . . .”

      But several witnesses expressed doubt that Mother had changed.

      For example, Mother’s probation officer denied seeing anything showing that

Mother had learned to think and behave differently: “[E]verything [Mother] would say

sounded like [a] textbook answer. It appeared that she wasn’t grasping what I was

asking her. . . . She wasn’t giving any examples of what someone would learn.”

Further, Mother was not taking responsibility for hitting Austin; instead, she blamed

Austin for moving and not being still. The probation officer explained that admitting

to having done something and taking responsibility for it were not necessarily the

same: “Externalizing blame. Blaming someone else for their actions. There’s a


      4
       After investigating a child-abuse or -neglect allegation, the Department assigns
one of five possible dispositions: (1) reason to believe (based on a preponderance of
the evidence), (2) ruled out, (3) unable to complete, (4) unable to determine, or (5)
administrative closure. 40 Tex. Admin. Code § 700.511(b) (“Tex. Dep’t of Family &
Protective Servs., Disposition of the Allegations of Abuse or Neglect”).


                                           7
criminal thinking error[] . . . if they minimize it or blame someone else, then they’re

not taking responsibility for their actions.”

       The caseworker, too, said that Mother blamed the children: “At one point in

December [2018] when we went over why the children came into care, she told me if

her children were . . . well-mannered children, we wouldn’t be in this situation.” The

caseworker doubted that Mother had changed: “[Mother] would tell me that that was

her way of disciplining the children and that CPS wanted a perfect parent. She never

really—from my conversations with her, she never really grasped that concept.”

Although Mother now used time-outs, which the caseworker commended, Mother

still disciplined in ways that the caseworker found unacceptable. For example, Mother

had forced Austin to do push-ups in a public area, and during Mother’s last visit with

the children, Mother had ended the visit early when the children disobeyed her.

       The push-up incident happened at a McDonald’s only a month before trial.

The court-appointed special advocate (CASA worker) described it: “[Mother] was

upset with [Austin,] and she made him get on the middle of the floor . . . and give her

20 pushups, and [Austin] was crying[,] and obviously he was embarrassed[,] and

people saw it . . . .” This happened not once but twice. “[W]hen [Austin] finished his

pushups and came back, [Mother] had him do it again for something else she was

upset with.”

       The CASA worker was concerned that physical abuse would continue. When

asked to explain why, she responded, “The way that [Mother] reacts to the children.

                                                8
She can get real angry with them[,] and she doesn’t physically do anything to them,

but she becomes agitated and yells at them there at the visit.”

      Overall, the Department did not think the children would be safe returning to

Mother.

      4. Mother’s mental-health issues made her resist change.

      Mother’s mental-health therapist thought that Mother had made progress “for

her abilities” but opined that Mother needed to continue counseling. The therapist

added that “CPS usually requests bigger changes, bigger progress in a quicker time

frame than I thought [Mother] was able to make.”

      A lack of intelligence was not the problem; Mother’s therapist described her as

“an intelligent lady who . . . talk[s] a good game” but nonetheless as having “a serious

lack of insight into and understanding of her own behaviors” and as presenting “an

extremely defensive profile.” According to the therapist, “She prefers to give cerebral

responses and avoids discussing her emotional reactions or how she feels about

situations.” In the therapist’s psychological evaluation, she explained why Mother’s

ability to change was effectively stunted:

      Although [Mother] attempted to present[] herself in a positive manner,
      some of the scales [are] still elevated and indicate her personality profile
      is associated with people who tend to think everyone is working against
      her, who have major trust issues, and are described by others as
      hypersensitive, resistant, and angry at times. People who produce such
      profiles are often viewed as guarded and distrustful. The profile is also
      associated with people who may have a marked overreaction to minor
      stress. They tend to have difficulty expressing their emotions in an
      adaptive manner and may alternate between being over-controlled and

                                             9
      direct to having under-controlled emotional outbursts. [Mother] tends to
      make excuses for her poor decision making and accepts little
      responsibility for CPS being involved in her life once again. . . .

             When a person tries to create a favorable impression of herself
      and takes a guarded and defensive approach to the test taking, this
      results in limited understanding of the person because they were not
      open to the process. . . .

             . . . . [Mother] presented as an individual who has little insight into
      her motivations and shows little awareness of the consequences to
      others because of her behavior. Excessive disciplining can affect children
      negatively.

      As examples of Mother’s lack of insight, the therapist pointed to how Mother

answered two incomplete-sentence prompts:

   • “If I could change one thing about myself it would be to be more perfect.”

   • “I failed to prove to CPS that I am not an abusive parent.”

“It is very hard,” the therapist concluded, “to help someone when they don’t see a

need to make changes.” And because of Mother’s “lack of insight and defenses which

keep her stuck,” the prognosis for any type of psychological intervention was “poor.”

      At trial, the therapist testified that Mother would sometimes admit to having

abused Sister but later revert to blaming her for what Mother had done. This

vacillating did not concern the therapist, though, because that was “somewhat normal

behavior” for persons who were “dealing with situations like this” and because

Mother’s vacillating depended on Mother’s mood and on what they were discussing.

      Mother told her therapist that she felt the Department was railroading her, and

to an extent her therapist tended to agree. The therapist explained that after a parent


                                             10
completes the family-care plan, the Department would usually work toward

transitioning the children back to the parent, something the Department did not do

with Mother. But the therapist acknowledged that she had never observed Mother

during Mother’s visits with the children.

      5. Mother’s visits with her children sparked emotional-abuse concerns.

      But those persons who had observed Mother interact with her children

expressed at trial their concerns that she was abusing them emotionally.

      For example, the caseworker testified:

      [Mother] would often belittle the children’s accomplishments, . . . .

            [Mother] would ask—you know, make them go to the restroom
      even though the children had stated they didn’t want to[.]

             Being able to have the children drink and pick what they want to
      eat. Telling them when they should take a drink and when they should
      not take a drink[.]

             Allowing the children to let her know when they were tired of
      doing a task and no longer wanted to do a task during the visit she—
      even though the children explained that they no longer wanted to do a
      certain task, she would disregard what the children were saying and
      continue on to doing the task.

      The CASA worker had similar concerns:

      [M]y observations are that mom is still very critical with the children.
      Her disciplinary actions do not . . . seem to be going towards what we
      were trying to establish with her that’s appropriate[.]

             The children’s conversations [concern] me.

            There are just—there are so many examples from the visits that
      would lead me to that conclusion[:]



                                            11
             [t]he way that she speaks to the children;

             [t]he way that she criticizes them;

             [t]he way that she tells them that she doesn’t believe something
      that they’re saying;

             [e]mbarrassing them.

             All of these things happened publicly . . . .

      The Department’s attorney then elicited specific examples from the CASA

worker:

      Q. Okay. Let’s start with your first concern that you identified that she
      was critical of the children.

             Can . . . you think of an example of her being critical of the
      children . . . ?

      A. Back [when the case first started,] she would come into the visit,
      immediately start examining the children, going through their hair,
      cleaning out their ears, telling them that they didn’t brush their teeth and
      that they hadn’t been putting lotion on. Even though the children would
      say, yes, they had, she would tell them they hadn’t[,] and those were at
      the early onset, you know—

      Q. Couldn’t that just be—

      A. Criticize their clothes.

      Q. Okay. Isn’t that just a mother being concerned for the well-being of
      her children making—

      A. Not— well, I’m sorry. Go ahead.

      Q. I mean, why wouldn’t you describe that as just a mother being
      concerned for her child ensuring that they are properly caring for their
      teeth, their hair, their skin?

      A. She did it in a way like a gorilla would do his baby.



                                           12
      ....

      Q. . . . [T]his was something that was addressed later on in the case as
      well in the transition to monitored return order, you know, specifically
      those behaviors. What—did you see a change in that over the course of
      this case?

      A. No. She wasn’t quite as critical, but at the last few weeks she has
      returned to being critical again and—

      Q. And what example do you have from the last few weeks that
      indicates to you that there’s been a regression or a return to that same
      behavior?

      A. At McDonald’s which is where we meet for our visits. They were
      standing in line, and mom reaches over to [Angela] and starts trying to
      clean out her ears right up there in line with everyone. You know,
      [Angela] tells her to leave her alon[e] and pulls away from her—[Angela]
      does.

             [Mother] started talking to them about their teeth. And [Austin]
      just gets away. He won’t let her start grooming on [him]. He will pull
      away and not let her get that far.

      Q. Okay. And. Again, how old are these children?

      A. They’re eleven.

      Q. Okay. I mean, isn’t this just part of normal parenting?

      A. No.

      When the children’s guardian ad litem followed up, the CASA worker flatly
denied that Mother had shown any improvement:

      Q. The last visitation that you had with the mother and the children was
      when?

      A. Yesterday.

      Q. Okay. And in the almost two years of visitation with their mom, have
      you seen any significant change in mother’s behavior since June of
      2012 [sic] [November 2016] to yesterday afternoon that she has


                                          13
      improved or worked on any of the activities that the family therapist was
      working with her trying to alleviate some of the issues? Do you see any
      improvement in your opinion?

      A. No.

      Mother disagreed with these various concerns: “What I call communication,

they call emotional abuse.”

      6. Austin’s ADHD and Mother’s OCD diagnoses shed more light on the
         family dynamics.

      While this case was pending, Austin was diagnosed with ADHD (attention-

deficit hyperactivity disorder) and was placed on medication. Although Mother had

initially balked at medicating him, at trial she agreed that Austin needed it. Noting

Austin’s progress in school—he was no longer disruptive, he was listening, and he

was on the AB honor roll—Mother said that she trusted the doctors’ and the foster

parents’ judgment.

      Also while the case was pending, Mother was diagnosed with an obsessive–

compulsive personality disorder. Mother denied that anyone had recommended that

she take medication for her OCD but acknowledged that she was receiving individual

counseling to address it.

      7. The children vacillated about returning to Mother’s home.

      The court heard conflicting testimony about the children’s wishes.




                                         14
   a. The caseworker

Q. What are the desires of [Angela]?

A. [Angela] has stated that she does not want to go back home.

      One of the things that has raised a red flag for me was she
previously—including last week when I went to go talk to her that she is
concerned that once CPS is out of the picture and nobody is in their
business, mom will go back to being the old mom and whopping [sic]
them.

      ....

Q. Has [Angela] throughout this case expressed different opinions on
where she wants to be?

A. Yes.

Q. Is that uncommon for children to do that?

A. No.

Q. [Angela], as far as you can tell, loves her mom?

A. Yes.

Q. As far as you can tell does [Mother] love [Angela]?

A. Yes.

Q. So the fact that [Angela] might say she wants to return to mom, does
that surprise you?

A. No.

Q. How recently has [Angela] told you she does not want to go home
and she’s afraid that her mom will return back to hitting her and her
brother once CPS isn’t watching?

A. Two days ago when I went to go visit.

      ....


                                    15
Q. What are [Austin]’s wishes?

A. [Austin] has stated that he wants to go back to his mom. [Austin]
changes his mind often. One week he’ll say he wants to stay in the foster
home because he feels safe. The next week he’ll say he wants to go back
with mom.

       From what I’ve noticed from [Austin], it changes depending on if
he’s in trouble at the foster home or not. [Whenever] he’s in trouble
because he acted out or gets grounded, then he wants to go with mom.

Q. Now, you indicated that when he states he wants to stay in the foster
home it’s because he feels safe.

A. Correct.

Q. What are the reasons that he gives of wanting to go back to mom?

A. Because they get to go—he states that they go on field trips and they
do activities. Those have really been the only reasons that he’s been able
to give.

   b. The CASA worker

Q. And what in your opinion are their desires? We’ll start with—we’ll
split them up.

      What are [Austin]’s desires in this case?

A. He said he doesn’t ever want to go home to her.

Q. And how recently has he made that statement to you?

A. Two weeks ago . . . .

      ....

Q. And so regarding [Angela], what is your opinion as to what her
desires are?

A. When I asked her, I mentioned to her that I had understood that CPS
would let her know that there’s a possibility that she would not be going
home and how did she feel about that[,] and she flipped her head


                                   16
      sideways and did a great big giant smile[,] and she said, “I’m glad.” And I
      said, “You sure you’re glad?” And she stated, “Yes. I do not want to live
      with her. I know that she’ll hit us again.”

         c. Mother

      Q. Okay. [Mother], and you’ve been able to spend quite a bit[] of time
      with your children, correct?

      A. Yes.

      Q. Even during this case?

      A. Yes.

      Q. Have they ever expressed to you that they wanted to come home?

      A. Yes.

      Q. And—okay. And have they ever expressed to you that they didn’t
      want to come home?

      A. No.

      8. The children’s future placement options remained unsettled.

      If Mother’s parental rights were terminated, the caseworker explained that the

children’s current foster family was not adoption-motivated but was willing to keep

the children until they aged out. According to the caseworker, the children preferred

to stay in the foster home but were not adamantly opposed to adoption.

      In the same vein, the CASA worker noted that the children had bonded with

the foster family and were thriving. About adoption, the CASA worker testified that

“[Austin] stated that he was not interested in going home to mom and that if [the

foster mother] didn’t want to adopt him, he was fine with that just as long as he had



                                          17
nice parents.” Angela was also open to being adopted by someone other than her

foster parents.

      Mother maintained that she had a safe home, stable housing, and lawful

employment.

                                Standard of Review

      A. Generally

      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); 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.,

385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48,

102 S. Ct. 1388, 1391–92 (1982)).

      Termination decisions must be supported by clear and convincing evidence. See

Tex. Fam. Code Ann. § 161.001(b), § 161.206(a); In re E.N.C., 384 S.W.3d 796,

802 (Tex. 2012). Due process demands this heightened standard because “[a] parental

rights termination proceeding encumbers a value ‘far more precious than any property

right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at

1397). Evidence is clear and convincing if it “will produce in the mind of the trier of



                                          18
fact a firm belief or conviction as to the truth of the allegations sought to be

established.” Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

      For a trial court to terminate a parent–child relationship, the party seeking

termination must establish, by clear and convincing evidence, that (1) the parent’s

actions satisfy just one of the many predicate grounds (currently up to 21) that are

listed in family code section 161.001(b)(1), and (2) termination is in the child’s best

interest under section 161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b)(1), (2);

E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

      Regarding subsection 161.001(b)(1) grounds, the supreme court recently

articulated an important qualification: if the trial court finds grounds under subsection

(b)(1)(D) or (E)—both of which involve endangering a child’s physical or emotional

well-being—an appellate court must review the (D) or (E) grounds on appeal because

they have potential collateral consequences for other children the parent may have. See

Tex. Fam. Code Ann. § 161.001(b)(1)(M) (providing that a prior termination under

(D) or (E) is a ground for terminating parental rights to a different child); In re N.G.,

___ S.W.3d ___, No. 18-0508, 2019 WL 2147263, at *4 (Tex. May 17, 2019) (“[I]f a

court of appeals affirms the termination on either [(D) or (E)] grounds, it must

provide the details of its analysis.”).5 Termination may not be based solely on the


      5
       In that case, the trial court found grounds under (D), (E), and (O); the
appellate court affirmed on (O) and declined to address (D) and (E). N.G.,
2019 WL 2147263, at *1. The supreme court held that the appellate court erred by not
addressing grounds (D) or (E) and also erred in its (O) analysis and so remanded all

                                           19
child’s best interest as determined by the factfinder under section 161.001(b)(2). Tex.

Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E.,

391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).

      B. Legal Sufficiency

      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 Department proved both the particular ground for

termination and that termination is in the child’s best interest. In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002); see 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, and we resolve

any disputed facts in favor of the finding if a reasonable factfinder could have done

so. J.F.C., 96 S.W.3d at 266. We also must disregard all evidence that a reasonable

factfinder could have disbelieved, in addition to considering 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


three grounds to the appellate court for “further proceedings consistent with this
opinion.” Id. at *4, *6 (“We hold that due process and due course of law requirements
mandate that an appellate court detail its analysis for an appeal of termination of
parental rights under section 161.001(b)(1)(D) or (E) of the Family Code.”). We read
N.G. as saying that an affirmance under either (D) or (E) suffices because an
affirmance under one makes the other moot under (M). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(M) (providing that a prior termination under (D) or (E) is a ground
for terminating parental rights to a different child). Regardless of how to interpret the
disjunctive, out of an abundance of caution we will analyze both (D) and (E) grounds.


                                           20
a reasonable factfinder could not. See id. In doing our job, we cannot weigh witness-

credibility issues that depend on the witness’s appearance and demeanor; that is the

factfinder’s province. J.P.B., 180 S.W.3d at 573. 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.

      C. Factual Sufficiency

      We must perform “an exacting review of the entire record” in determining

whether the evidence is factually sufficient to support terminating a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual-sufficiency

review, we give due deference to the factfinder’s findings and do not supplant the

judgment 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 an alleged ground and that termination is in the child’s

best interest. Tex. Fam. Code Ann. § 161.001(b); see In re C.H., 89 S.W.3d 17, 25 (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.




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                             Grounds under (D) and (E)

      A. Law

      “Endanger” means to expose to loss or injury, or to jeopardize a child’s

emotional or physical health. 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.). The parent’s conduct need not be

directed at the child nor must the child actually suffer injury in order to be endangered

within the statute’s meaning. J.T.G., 121 S.W.3d at 125. Moreover, a child can be

endangered simply by violence that is directed toward another child in the home. In re

J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

      Under (D), we examine evidence related to the child’s environment to

determine if that environment endangered the child’s physical or emotional well-

being. J.T.G., 121 S.W.3d at 125. A parent’s conduct in the home, including abusive or

violent conduct, can create an environment endangering a child’s physical and

emotional well-being. Id.

      Under (E), we ask whether evidence exists that the parent’s conduct—

including acts, omissions, or failures to act—endangered the child’s physical or

emotional well-being. Id. Additionally, (E) requires not just a single act or omission

but rather a voluntary, deliberate, and conscious course of conduct. Id.

      We may conduct a consolidated review of (D) and (E) grounds when the

evidence pertaining to both is interrelated, as it is here. See In re M.R.J.M., 280 S.W.3d

494, 503 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).

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      B. Discussion

      The record shows that Mother engaged in conduct that endangered Austin’s

and Angela’s physical well-being. Mother admitted to at least five instances of physical

abuse, and physical abuse had led to Sister’s second removal in 2009. The children’s

interviews revealed that Mother’s striking them with a belt occurred multiple times. In

short, Mother engaged in a course of endangering conduct. Because the children lived

with Mother, she also created an environment that endangered them physically. See

J.T.G., 121 S.W.3d at 125.

      The caseworker and the CASA worker also described Mother’s micromanaging

the children’s conduct in demeaning, embarrassing, and age-inappropriate ways and

belittling them with repeated criticism. But because the evidence established that

Mother engaged in physical abuse, we need not decide whether this additional

conduct amounted to emotional abuse. See Tex. Fam. Code Ann. § 161.001(b)(1)(D),

(E) (requiring endangering a child physically or emotionally).

      We hold that the evidence sufficed both legally and factually to support the trial

court’s (D) and (E) findings. See J.F.C., 96 S.W.3d at 265–66 (stating that to be legally

sufficient, the evidence must be such that a factfinder could reasonably form a firm

belief or conviction about the truth of the Department’s allegations); C.H., 89 S.W.3d

at 25 (stating that to be factually sufficient, on the entire record, a factfinder must be

able to reasonably form a firm conviction or belief that the parent violated an alleged



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ground). We overrule Mother’s legal- and factual-sufficiency challenges to the trial

court’s (D) and (E) findings.

                                   Grounds under (L)

       Having found the evidence legally and factually sufficient under (D) and (E),

we need not address grounds under (L). See N.G., 2019 WL 2147263, at *4 n.1;

E.N.C., 384 S.W.3d at 803. We thus overrule as moot Mother’s evidentiary-sufficiency

challenges to the trial court’s (L) finding.

                                       Best Interest

       A. 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).

       We review the entire record to determine the child’s best interest. In re E.C.R.,

402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative both of the

grounds under section 161.001(b)(1) and of best interest under section 161.001(b)(2).

Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors that the factfinder in a

termination case may also use in determining the child’s best interest include:

       • the child’s desires;

       • the child’s emotional and physical needs now and in the future;

       • the emotional and physical danger to the child now and in the future;

       • the parental abilities of the individuals seeking custody;



                                               24
      • the programs available to assist these individuals to promote the child’s best
        interest;

      • the plans for the child by these individuals or by the agency seeking custody;

      • the stability of the home or proposed placement;

      • the parent’s acts or omissions that may indicate that the existing parent–child
        relationship is not a proper one; and

      • the parent’s excuse, if any, for the acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at

249 (stating that in reviewing a best-interest finding, “we consider, among other

evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807. These factors do not form

an exhaustive list, and some factors may not apply to some cases. C.H., 89 S.W.3d at

27. Furthermore, undisputed evidence of just one factor may suffice in a particular

case to support a finding that termination is in the child’s best interest. Id. On the

other hand, the presence of paltry evidence relevant to each factor will not support

such a finding. Id.; In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex.

App.—Fort Worth July 5, 2018, no pet.) (mem. op.).

      B. Discussion

      Mother had a history dating back to 2009 of physically abusing her children,

receiving counseling, assuring the Department that she would stop physically abusing

the children, and then abusing them again despite the counseling and her assurances.

Mother’s overbearing and critical parenting raised additional emotional-abuse

concerns; at the very least, the caseworker and the CASA worker described toxic—


                                           25
not nurturing—parenting, and Sister’s decision nearly a decade earlier to age out of

foster care rather than return to Mother’s home underscores that Mother’s home was

an unhealthy one for children.

      For mental-health reasons, Mother had difficulty recognizing her conduct as

abusive, and she resisted change. Mother’s probation officer articulated the difference

between Mother’s ability to acknowledge striking Austin with a belt and her inability

to admit responsibility for it: Mother exhibited criminal-thinking errors by minimizing

her conduct and blaming the children for causing her to hit them with a belt. Mother’s

therapist described her as “stuck” in her thinking and wrote that her prognosis was

“poor.”

      Returning Sister to Mother in 2009 had proved a failure, and the trial court here

had already tried a transitional monitored return; it had failed too. Although Austin

was ostensibly loyal to Mother, even he recognized that the foster family offered

safety, something he did not attribute to Mother. And Angela dismissed any idea that

Mother had changed and feared that Mother would resume abusing them “once CPS

[was] out of the picture.”

      If Mother’s rights were terminated, the children’s future was still burdened with

some unanswered questions, but whether they would be physically or emotionally

abused were not among them. Austin and Angela were in a foster home where they

were bonded to their foster parents and were thriving. Although the foster home was

not adoption-motivated, the children were welcomed there until they aged out or were

                                          26
adopted—an option the children were willing to consider. Although Austin and

Angela were not in a “forever” home, they were in a safe, stable, and nurturing home

where they did not have to fear physical abuse, to endure emotional abuse, or to risk

future removals with all the obvious associated uncertainties.

       We hold that the evidence suffices both legally and factually to support the trial

court’s best-interest finding. See J.F.C., 96 S.W.3d at 265–66 (stating the test for legal

sufficiency); C.H., 89 S.W.3d at 25 (stating the test for factual sufficiency). We

overrule Mother’s legal- and factual-sufficiency challenges to the trial court’s best-

interest finding.

                                      Conclusion

       Having overruled Mother’s challenges, we affirm the trial court’s judgment.




                                                       /s/ Elizabeth Kerr
                                                       Elizabeth Kerr
                                                       Justice

Delivered: August 8, 2019




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