 




 
 
 
                                         In The
 
                                   Court of Appeals
 
                        Ninth District of Texas at Beaumont
 
 
 
 
                                 NO. 09-13-00452-CV
 
 
 
 
 
 
 
                 IN THE INTEREST OF A.G.F., C.W.F., AND J.C.F.
 
 
                                             
 
 
                       On Appeal from the 253rd District Court
                              Liberty County, Texas
                            Trial Cause No. CV1205605
 
 
 
                             MEMORANDUM OPINION
 
 
          The trial court terminated the parental rights of M.F. and L.F. to three

    children, A.G.F., C.W.F., and J.C.F. The trial court found that each parent

    knowingly placed or knowingly allowed the children to remain in conditions or

    surroundings that endangered the physical or emotional well-being of the children,

    and that each parent engaged in conduct or knowingly placed the children with

    persons who engaged in conduct that endangered the physical or emotional well-


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    being of the children, and that termination is in the children’s best interest. See

    Tex. Fam. Code Ann. § 161.001(1)(D)-(E), (2) (West Supp. 2013). On appeal, M.F.

    and L.F. challenge the legal and factual sufficiency of the evidence supporting

    termination. We affirm the trial court’s judgment.

                                    Standard of Review

          In a legal sufficiency review, we consider all of the evidence in the light

    most favorable to the termination finding to determine whether a reasonable trier

    of fact could have formed a firm belief or conviction about the truth of the

    allegation. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005) (quoting In re J.F.C., 96

    S.W.3d 256, 266 (Tex. 2002)). We assume the factfinder resolved any disputed

    facts in favor of its finding, if a reasonable factfinder could do so, and

    disregarded all evidence that a reasonable factfinder could have disbelieved. Id. at

    85 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

          In a factual sufficiency review, we give “due consideration” to any evidence

    that the factfinder could reasonably have found to be clear and convincing. In re

    J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We

    consider the disputed evidence and determine whether a reasonable factfinder could

    not have resolved that evidence in favor of the finding. Id. The evidence is factually

    insufficient if the disputed evidence that does not reasonably support the


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    finding is so significant that a factfinder could not have reasonably formed a firm

    belief or conviction. Id.

          The trial court’s involuntary termination of parental rights involves the

    parents’ fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20

    (Tex. 1985). Therefore, the evidence that supports termination must be clear and

    convincing before the court may involuntarily terminate the parents’ rights. Id.; see

    also Tex. Fam. Code Ann. § 161.001. The Family Code defines clear and

    convincing evidence as “the measure or degree of proof that will produce in the

    mind of the trier of fact a firm belief or conviction as to the truth of the allegations

    sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2008).

          Before the court may terminate parental rights involuntarily, the factfinder

    must find by clear and convincing evidence (1) that the parent committed one of

    the statutory grounds found in section 161.001(1) of the Family Code, and (2) that

    termination is in the children’s best interest. Tex. Fam. Code Ann. § 161.001; see

    also Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987).

                                            Background

          The Texas Department of Family and Protective Services (“the

    Department”) contends that M.F.’s and L.F.’s frequent domestic disturbances

    endangered       the        children.     M.F.       has    nine      children      but



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    this case concerns only the three youngest, who were born to M.F. and L.F. in

    2005, 2006, and 2010.        Between 1994 and 2010, the Department considered

    twenty-three referrals of the family, including ten referrals for neglect or sexual

    abuse that the Department deemed “reason to believe.” The history related in the

    psychological reports indicates that M.F. and L.F. met in 1999 and agreed to be

    married in 2003. From 2006 through 2013, the sheriff’s office received more

    than fifty calls concerning incidents at the residence.

         L.F. stated that he moved out of the family home approximately sixteen

    months before the trial. L.F. was living with his mother, but he and M.F.

    repeatedly attempted to reconcile during this period. L.F. was frequently at the

    family home and the police were often dispatched in response to conflicts that

    erupted between L.F. and M.F. or other family members.

         The Department’s caseworker testified that L.F. would be present when she

    visited the family home. The caseworker described one occasion when she came to

    the home after one of the parents’ arguments. M.F. showed the caseworker hand

    marks on M.F.’s arm that M.F. claimed had been created by L.F. As she was

    leaving, the caseworker saw L.F. drive up to the home. She returned to the house

    and spoke with L.F., who was having a cup of coffee, and asked him to leave

    because everyone was upset. L.F. claimed that M.F. had struck him on his back

    during the earlier altercation.

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         In April 2012, police responded to a domestic disturbance between C.H., the

    seventeen-year-old son of M.F., and L.F. J.C.F. received a blow to the head when

    L.F. slammed a door during the argument. One of the officers who responded to the

    call observed a small red mark on the child’s head. This event caused the

    Department to seek removal of the younger children from the family home.

          M.F. testified that L.F. was chronically abusive towards her. M.F. testified

    that she obtained a since-expired protective order against L.F. several years

    earlier because the children were upset by L.F.’s verbal and physical abuse. More

    than once L.F. disabled the car and broke the locks in the house. L.F. slapped

    M.F. and choked her in front of the children, and she claimed that C.W.F. played a

    “choking” game with his sister after returning from a visit with L.F. She would call

    the police to keep the children from having to witness L.F.’s abusive behavior.

    M.F. also accused L.F. of engaging in physical altercations with two of M.F.’s

    other children from a previous relationship. M.F. claimed L.F. was also cruel to

    animals and that some time before April 2012, L.F. killed a horse in front of the

    children.

          Police frequently responded to reports of domestic violence at the home, at

    times two or three in one evening. One officer testified to having the impression

    that M.F.’s allegations against L.F. were not always truthful. In fact, M.F. was

    convicted on her guilty plea to filing false charges against L.F. in 2013. In that

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    incident, M.F. had called in a domestic disturbance to the police, but the officer

    determined from physical evidence at the scene that L.F. could not have been

    present when M.F. called the police.

          The Department’s investigator testified that the two parents frequently and

    repeatedly accused each other of drug use and domestic violence. In September

    2013, L.F. pled guilty to having assaulted M.F. in November 2012. In an interview

    with a Department investigator, L.F. denied being physically abusive to M.F. but

    claimed that M.F. was physically abusive to him. He stated that the children were

    present during these assaults. L.F. also described ongoing disputes with C.H., his

    step-son. According to L.F., C.H. had called the police on previous occasions.

          M.F. and L.F. failed drug tests. They claimed to have chronic pain and

    anxiety conditions for which they claimed they had prescriptions.

                        Grounds for Terminating Rights of Father

          L.F. argues the evidence does not support a finding of domestic abuse, of

    cruelty to animals, or that the children were exposed to either domestic abuse or

    cruelty to animals. L.F. acknowledges that M.F. testified that he committed acts of

    domestic violence and cruelty to animals. L.F. contends that all of M.F.’s

    allegations were negated by L.F.’s brother and a cousin, who testified that while

    the couple argued, M.F. antagonized L.F. and they never observed L.F. physically

    abuse M.F. L.F.’s guilty plea to having assaulted M.F. provides some
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    corroboration for M.F.’s claim that L.F. physically abused her. All of the

    witnesses agreed that M.F. and L.F. have a volatile relationship, and both L.F.

    and M.F. conceded that they exposed their children to their arguing and physical

    confrontations and the resulting police intervention. M.F.’s guilty plea to filing a

    false report and the officer’s suspicion that M.F. was not being entirely truthful

    when she called the police cast serious doubt on her credibility, but L.F. himself

    admitted that he was frequently at the house and that M.F. called the police

    during their arguments.

          Physical abuse of the children’s other parent can support a finding of

    endangerment. See In re C.A.B., 289 S.W.3d 874, 886 (Tex. App.—Houston

    [14th Dist.] 2009, no pet.); In re C.E.K., 214 S.W.3d 492, 496-97 (Tex. App.—

    Dallas 2006, no pet.). Viewing the evidence in the light most favorable to the

    termination order, we conclude the trial court could have formed a firm belief or

    conviction that L.F. endangered the physical or emotional well-being of the

    children. See Tex. Fam. Code Ann. § 161.001(1)(E). The evidence that M.F.

    fabricated tales of violent conduct by L.F. is not so significant that the trial court

    could not reasonably believe M.F.’s testimony that L.F. had been physically violent

    in front of the children, especially in light of the objective evidence of the

    conflicts within the family, such as the evidence that their youngest child was

    hurt when he got caught up in one of L.F.’s confrontations with his step-son.
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          The evidence is legally and factually sufficient to support a finding that L.F.

    endangered the physical or emotional well-being of the children. Because only one

    predicate finding under section 161.001(1) is necessary to support a judgment of

    termination when there is also a finding that termination is in the children’s best

    interest, we need not address L.F.’s arguments relating to the alternate ground for

    termination. See Tex. R. App. P. 47.1; see also In re A.V., 113 S.W.3d 355, 362

    (Tex. 2003). L.F. does not discuss the evidence relating to the best interest factors

    and in the body of his brief he fails to challenge the trial court’s finding that

    termination of his parental rights is in the best interest of the children. See Tex.

    Fam. Code Ann. §161.001(2). We overrule the issue that L.F. presented for review.

                        Grounds for Terminating Rights of Mother

         L.F. claimed that M.F. engaged in domestic violence against him and that she

fabricated accusations against him. M.F. concedes that L.F. made some claims

against her, but she argues the evidence was not clear and convincing as to either his

claims or her own and she argues the evidence is insufficient due to the lack of

corroborating evidence. She contends the family was merely a nuisance to law

enforcement and the children were not jeopardized by their domestic disputes.

         M.F. presented herself as the victim of L.F.’s domestic abuse, but L.F.

testified that in their confrontations M.F. was the abuser. L.F. claimed that in

November 2011, during a confrontation with M.F., M.F. began to repeatedly strike
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him on the arm with a baseball bat until one of M.F.’s daughters intervened. M.F.

responded to this intervention by attacking her daughter. Although they did not say

that they witnessed M.F. striking L.F., other family members testified that M.F. was

the instigator of the domestic disturbances in front of the children. As the sole judge

of the credibility of the witnesses, the trial court could reasonably have believed

L.F.’s statement that M.F. physically attacked L.F. in front of the children and

concluded that M.F.’s abusive relationship with L.F. endangered the emotional well-

being of the children. See C.A.B., 289 S.W.3d a t 886; C.E.K., 214 S.W.3d a t

496-98.

          Viewing the evidence in the light most favorable to the termination order,

    we conclude the trial court could have formed a firm belief or conviction that

    M.F. endangered the physical or emotional well-being of the children. See Tex.

    Fam. Code Ann. § 161.001(1)(E). M.F. claimed that L.F. was the aggressor, and

    that her repeated calls to the police were made to protect the children and not to

    retaliate against L.F., but her self-serving claim to being a blameless victim is not so

    significant that the trial court could not believe L.F.’s testimony that M.F. was

    physically abusive and reasonably conclude that M.F. was a willing participant in

    their constant domestic strife.     Because the evidence is legally and factually

    sufficient to support a finding that M.F. endangered the children, we need not

    address M.F.’s arguments relating to the alternate ground for termination. See Tex.
                                               9
 
 




    R. App. P. 47.1; A.V., 113 S.W.3d at 362. We overrule M.F.’s issue two and do

    not reach issue one.

                                         Best Interest

           In issue three, M.F. contends the evidence that termination of her parental

    rights is in the best interest of the children is legally and factually insufficient. See

    Tex. Fam. Code Ann. §161.001(2). The Texas Supreme Court has set forth a non-

    exhaustive list of factors to consider in determining whether termination is in a

    child’s best interest:

         (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 which 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.

    Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). We recognize a strong


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    presumption that a child’s best interest is served by maintaining the parent-child

    relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.]

    2003, no pet.). The party seeking termination need not prove that each Holley

    factor favors termination. C.H., 89 S.W.3d at 27.

          M.F. notes that she desired to retain her parental rights, the children missed

    their parents and wanted to see them, the children’s home, though filthy and

    cluttered, was not shown to be unsafe, and she tried to complete her parenting plan,

    but failed because L.F. sabotaged her vehicle.

          The foster parents expressed a desire to adopt the children. The foster mother

    testified that early in their relationship A.G.F. stated that she missed her parents,

    but then the children never asked to see their parents. She noted that A.G.F. likes to

    use the foster family’s surname as her own. The CASA volunteer noted that both

    A.G.F. and C.W.F. wanted to change their surname to that of the foster family.

    During a play therapy session, the oldest of the three children stated she wanted to

    see her other siblings again, but the middle child blurted out that he did not. The

    oldest child was excited about the foster mother’s expected child and stated, “I

    want to be adopted already.”

          L.F. visited the children a month or two before the trial. The foster mother

    stated that A.G.F. and C.W.F. were sad after the visit. The CASA volunteer who

    was present for the visit stated that the children mentioned that they missed their
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    mother, but they did not ask to see her.

          There was also evidence in the record from which the trial court could

    conclude that M.F. could not provide an appropriate environment for her children.

    The general consensus of the witnesses appeared to be that M.F. kept a filthy house

    when the children lived with her. Three weeks before the trial, M.F. moved in with

    her parents in Oklahoma as a condition of probation for an arson conviction. She

    testified that her parents had a safe and stable home, but the evidence established

    that children had been removed from the grandmother’s care in one of the earlier

    removals.

          The Department initially established a family plan for re-unification that

    required M.F. attend court hearings, submit to drug and alcohol testing, and attend

    parenting classes. M.F. testified that she did everything the caseworker asked of

    her, but the caseworker testified that M.F. failed to complete the plan. M.F. missed

    visits with the children but claimed L.F. had flattened her tires on one occasion and

    that he had taken the car on another. M.F. failed a drug test; she claimed she may

    have been given amphetamines in a recent emergency room visit, but she could not

    produce a prescription.

          M.F. appears to argue that she and the children both desired that M.F. retain

    her parental rights, and that because her failures were not within her control, it

    would not be reasonable for the trial court to conclude that she could not
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    appropriately parent the children. The trial court heard and reasonably could

    consider the evidence and conclude that M.F. had failed to provide a healthy

    environment in the past and that she did not show improvement over the course of

    what M.F. admitted was the fifth time children had been removed from her home.

           Considering all of the evidence in the light most favorable to the finding, we

    conclude the evidence is legally sufficient, as the trial court could have formed a

    firm belief that terminating M.F.’s parental rights was in the best interest of A.G.F.,

    C.W.F., and J.C.F. See J.F.C., 96 S.W.3d at 266. There was evidence that the

    children missed their mother, but there was also evidence that they had adjusted to

    the foster home and wanted to remain there. There was evidence that circumstances

    that were beyond her control contributed to M.F.’s inability to complete a plan for

    the return of the children. However, in light of the entire record, the evidence that

    M.F. argues does not support the trial court’s finding, is not so significant as to

    cause this Court to conclude that a reasonable factfinder could not have reasonably

    formed a firm belief or conviction that termination was in the children’s best

    interest.

           After applying the appropriate standards of review and considering the

    Holley factors, we hold the evidence is legally and factually sufficient for a

    reasonable factfinder to have formed a firm belief or conviction that it is in the best



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    interest of A.G.F., C.W.F., and J.C.F. for M.F.’s parental rights to be terminated.

    Accordingly, we overrule M.F.’s third issue and affirm the trial court’s judgment.

          AFFIRMED.
           
 
 
 

                                                            CHARLES KREGER
                                                               Justice
 
 
 
Submitted on January 3, 2014
Opinion Delivered February 13, 2014
 
 
Before McKeithen, C.J., Kreger and Horton, JJ.




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