Opinion filed December 20, 2013




                                               In The


            Eleventh Court of Appeals
                                           __________

                                     No. 11-13-00182-CV
                                         __________

  IN THE INTEREST OF A.G., J.G., M.F., AND B.F., CHILDREN


                          On Appeal from the 50th District Court
                                       Knox County, Texas
                                  Trial Court Cause No. 9465


                          MEMORAND UM OPI NI ON
        This is an appeal from an order terminating the parental rights of the mother
and father of M.F. and B.F., whom we refer to in this opinion as “the children.” 1
Both parents appeal. In three points of error, the parents challenge the legal and
factual sufficiency of the evidence to support termination. We affirm.


        1
         Although the notice of appeal indicates that Appellants desire to appeal from all portions of the
judgment, Appellants’ brief addresses issues that relate only to M.F. and B.F. We note that the mother of
M.F. and B.F. is also the mother of A.G. and J.G.; however, the trial court did not terminate any parent’s
rights with respect to A.G. and J.G. Managing conservatorship of A.G. and J.G. was awarded to their
father, who is not the father of M.F. and B.F.
                              I. Termination Standards
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine if the evidence is legally sufficient in a parental termination case, we
review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if
the evidence is factually sufficient, we give due deference to the finding and
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations against the parent. In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown
by clear and convincing evidence that the parent has committed one of the acts
listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
      With respect to the best interest of a child, no unique set of factors need be
proved.   In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet.
denied). But courts may use the non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include,
but are not limited to, (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to
the child now and in the future, (4) the parental abilities of the individuals seeking
custody, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement,
(8) the acts or omissions of the parent that may indicate that the existing parent-
child relationship is not a proper one, and (9) any excuse for the acts or omissions
of the parent. Id. Additionally, evidence that proves one or more statutory grounds
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for termination may also constitute evidence illustrating that termination is in the
child’s best interest. C.J.O., 325 S.W.3d at 266.
                          II. Findings as to M.F. and B.F.
      In this case, the trial court found that the parents had committed two of the
acts listed in Section 161.001(1)—those found in subsections (D) and (E).
Specifically, the trial court found that the parents had placed or allowed the
children to remain in conditions or surroundings that endangered the children’s
physical or emotional well-being and that they had engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children. The trial court
also found, pursuant to Section 161.001(2), that termination of the mother’s and
the father’s parental rights would be in the best interest of M.F. and B.F.
                                III. Evidence at Trial
      The record shows that the Department of Family and Protective Services
removed nine-month-old B.F. and eight-year-old M.F. from their parents’ care after
B.F. was hospitalized and diagnosed with “nonaccidental trauma” from being
shaken. B.F. was originally taken to the hospital in Knox City, then transferred to a
hospital in Abilene, and ultimately transferred to Cook Children’s Medical Center
in Fort Worth where he remained for one week. Appropriate medical treatment for
B.F. was delayed because the parents did not inform medical personnel what had
happened to B.F. Not only did the parents fail to assist the hospitals by informing
medical personnel what had happened to B.F., the parents allowed a spinal tap to
be performed on B.F. to test for meningitis. Medical experts at Cook Children’s
Medical Center determined that B.F. had been shaken and that his injuries were not
consistent with a fall.
      During the investigation into B.F.’s injuries, the parents, at times, claimed
that B.F. had hit his head when the father accidentally dropped him. At other
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times, the parents suggested that a babysitter was to blame for B.F.’s injuries;
however, the record shows that the parents were the only adults around B.F. near
the time—as determined by medical personnel—that the injury occurred. The
father also indicated that he did not know what happened to B.F. The father, at one
time, indicated that he knew that someone in his house injured B.F., but he said
that he did not do it and stated, “I guess that would leave [the mother].” The father
changed his story numerous times and was so “overwhelming[ly] deceptive” that
the polygraph examiner refused to continue with the exam. The mother was also
“deceptive” and failed a polygraph.
      At the hearing, the father invoked his Fifth Amendment privilege and
refused to answer numerous questions that involved the circumstances surrounding
B.F.’s injuries and hospitalization. The father’s attorney informed the trial court
that the father “has been under investigation continuously since last year by the
Texas Rangers in regards to the injuries to [B.F.].”
      The mother testified that, on the night B.F. was hospitalized, B.F. “woke up
screaming” and then “started to projectile vomit.” The parents took B.F. to the
emergency room. The mother claimed that she heard a crash coming from the
kitchen and that B.F. had hit his head while he was in the kitchen with the father.
The mother also said that she and the father “did not tell any of the hospitals that
[B.F.] had hit his head” because they “were afraid of CPS coming in like they had
before and jumping to conclusions without getting the facts and then taking the
kids away from us again.”
      Testimony at trial indicated that the parents were under a considerable
amount of stress at the time B.F. was injured. Evidence also showed a history of
domestic violence in the household.       Two witnesses familiar with the family
testified that the father was physically abusive toward the mother. In addition to
evidence of physical abuse perpetrated by the father, evidence was also introduced
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showing that the mother, while holding B.F. and a butcher knife, said to the father,
“[I]f you don’t get this [their vehicle] fixed, I’ll kill every one of these kids,
starting with the youngest to the oldest.” A.G. heard the mother’s threat and ran
into the food pantry crying.     A licensed professional counselor testified that
domestic violence in the home significantly affects children and is devastating to
their well-being.
       Texas Ranger Corey Lain investigated B.F.’s injuries. Ranger Lain testified
that, about a year prior to the commencement of this case, the father had contacted
Ranger Lain and requested that he investigate a situation involving the Knox City
police department. According to Ranger Lain, the father complained that the
“police department was on some type of campaign against him and his family and
was siding with another family and allowing masked men to break their windows
and throw trash on their yards so that the police could write him Class C tickets for
littering violations.”
       The mother had similar thoughts with respect to the Department and the
school being against her family. On the day that B.F. was injured, the mother
received a call from the school about A.G.’s notebook, which contained some
concerning drawings. The mother, who “thought that the school was against the
kids, especially [A.G.],” was furious with the school and, without even seeing the
notebook, asserted “that that wasn’t [A.G.’s] handwriting, that it was Joseph’s.”
The mother withdrew A.G., J.G., and M.F. from school that day.
       In an incident that occurred at the courthouse after a hearing was postponed,
the mother “took off” down the hallway, upset that she could not speak to the judge
or the Department’s attorney.      The father stayed behind and talked to the
caseworker about obtaining the required services.        The mother returned and
became enraged when she saw the father and the caseworker talking. The mother
screamed at the father “all the way down the hallway”: “Don’t talk to them, . . . .
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Get away from them.” The caseworker testified that the mother’s behavior that
day was “quite irrational” and frightening.
      Ranger Lain believed that the children’s safety would be directly threatened
and that they would be in jeopardy if they were returned to the parents. The
Department’s caseworker also testified that she would be concerned for the
children’s emotional and physical safety if the children were returned to their
parents. The caseworker also explained why parental termination was appropriate
with respect to B.F. and M.F. but was not necessary with respect to A.G. and J.G.
M.F. and B.F. have remained with the same foster family since this case began,
which was one year and four months prior to the final hearing.
      The foster parents have provided the children with a good, safe, and stable
home. They have developed a close bond with the children and would like to
adopt both of them. The foster mother testified that M.F. likes living with them but
that M.F. misses her mother and would like to go home. The children’s ad litem
informed the court that M.F. is apathetic: she misses her mother and wants to go
home, but she said it would be perfectly okay to stay with the foster parents too.
The foster mother thought that it would be in both children’s best interest to remain
with the foster parents. She believed that M.F. would adjust and that M.F. needed
stability. As for B.F., the foster mother testified that B.F. had been released from
the neurosurgeon, that B.F. knows the foster parents as his parents, and that B.F.
and the foster father have an extremely close relationship. The caseworker testified
that termination would be in M.F.’s and B.F.’s best interest.
      The record reflects that the parents participated in the court-ordered services
and that they visited the children regularly. Their visits were always appropriate,
though sometimes emotional.




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                                    IV. Analysis
      After reviewing the entire record, we hold that the evidence is sufficient to
support termination of both parents’ rights. We note first that a trier of fact in a
civil case is free to draw negative inferences from a witness’s repeated invocations
of the Fifth Amendment. Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007); see
TEX. R. EVID. 513(c).     In this case, the father invoked his Fifth Amendment
privilege when asked numerous questions about the events surrounding B.F.’s
injuries, for which criminal charges are still pending.
      The evidence is legally and factually sufficient to support the trial court’s
finding under Section 161.001(1)(E). There was clear and convincing evidence
from which the trial court could reasonably have formed a firm belief that the
parents engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the physical or emotional well-being of the
children. The evidence indicates that B.F. was severely injured by one of his
parents. The parents, however, covered for each other, attempted to blame a
babysitter, and failed to inform medical personnel what happened to B.F., which
delayed proper treatment. There was also evidence of domestic violence between
the parents and a bizarre act involving the mother and a butcher knife. Such acts
constituted conduct that endangered the children. To support termination under
Section 161.001(1)(E), the offending conduct does not need to be directed at the
child, nor does the child actually have to suffer an injury. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). Furthermore, domestic violence may constitute evidence of
endangerment. Id.; In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010,
pet. denied). The parents’ third point is overruled.
      Because a finding that a parent committed one of the acts listed in Section
161.001(1)(A)–(T) is all that is required under that statute, we need not address the
parents’ second point in which they challenge the sufficiency of the evidence to
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support the trial court’s finding under Section 161.001(1)(D).           See TEX. R.
APP. P. 47.1.
      We also hold that, based on the evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction
that termination of the parents’ parental rights would be in the best interest of the
children. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it
relates to the desires of the children, the emotional and physical needs of the
children now and in the future, the emotional and physical danger to the children
now and in the future, the parental abilities of the parents and the foster parents, the
nature of the injury to B.F., the circumstances surrounding that injury, the conduct
of the parents with respect to B.F.’s injury, the plans for the children by the
Department, the stability of the children’s current placement, and the foster
parents’ desire to adopt both children, we hold that the evidence is both legally and
factually sufficient to support the findings that termination of the mother’s and the
father’s parental rights is in the best interest of the children. See id. We hold that
the findings as to the best interest of M.F. and B.F. are supported by clear and
convincing evidence. The parents’ first point is overruled.
                               V. This Court’s Ruling
      We affirm the trial court’s order.




                                                      MIKE WILLSON
                                                      JUSTICE
December 20, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.



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