                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-10-00335-CV


IN THE INTEREST OF D.A.T., K.J.T.,
T.D.T., AND S.S.T., CHILDREN



                                      ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ----------

              MEMORANDUM OPINION ON REHEARING1
                                      ----------

      After considering Appellant I.J.T.’s motion for rehearing, we deny the

motion but withdraw our prior opinion and judgment of January 26, 2012, and

substitute the following.

                                   I. Introduction

      Appellants I.J.T. (Father) and W.T. (Mother) appeal the trial court’s

judgment terminating their parental rights to four of their children. After a bench

trial, the trial court found by clear and convincing evidence that Father and

      1
       See Tex. R. App. P. 47.4.
Mother had (1) engaged in conduct or knowingly placed the children with persons

who had engaged in conduct which endangered the physical or emotional well-

being of the children, (2) knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endangered their physical or

emotional well-being, and (3) previously had their parent-child relationships

terminated with respect to another child based on these same grounds.2 The trial

court also found that termination of Mother’s and Father’s parent-child

relationships would be in the children’s best interest and appointed the

Department of Family and Protective Services (the Department) as the children’s

permanent managing conservator. Father challenges the factual sufficiency of

the evidence in four issues, and Mother’s court-appointed counsel has filed a

motion to withdraw and an Anders brief in support stating that after diligently

reviewing the record, he believes that any appeal by Mother would be frivolous. 3

Although given notice and an opportunity to file a pro se brief, Mother did not do

so.   We affirm the trial court’s judgment terminating Father’s and Mother’s

parental rights.




      2
       See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (M) (West Supp. 2011).
      3
       See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).


                                        2
                                 II. Background

        Mother and Father have six children together. The four children involved

in this case are D.A.T., K.J.T., T.D.T., and S.S.T.      At the time of trial in

September 2010, D.A.T. was eleven years old, K.J.T. was nine years old, T.D.T.

was eight years old, and S.S.T. was five years old. In separate proceedings in

2008 in Lubbock County, Texas, Mother’s and Father’s parental rights to two

other children, H.T. and D.T., were terminated.

        Ashleigh Baumgarten is a Department caseworker in Lubbock.          She

served as Mother and Father’s caseworker for almost three years beginning in

approximately August 2005, and she testified that she was familiar with Mother

and Father’s lengthy history with the Department. She testified that they had

exhibited a pattern of neglectful supervision of their children and that the

Department had been concerned for years about the manner in which they

supervised (or failed to supervise) their children.   Mother and Father’s first

Department referral was in December 1997 and involved an allegation of

neglectful supervision; the report alleged that Mother and Father’s two year old

had sprayed oven cleaner in their nine-month old’s face.4      Baumgarten also

testified that Mother and Father had Department referrals in March 2002 for

alleged neglectful supervision and physical abuse; July 2002 for alleged

neglectful supervision; August 2002 for alleged medical neglect, physical abuse,

        4
        Neither child involved in the December 1997 incident is involved in this
case.


                                        3
physical neglect, and negligent supervision; August 2003 for alleged negligent

supervision and physical neglect; August 2004 for alleged negligent supervision,

physical abuse, and medical neglect; September 2004 for alleged negligent

supervision; and two in March 2005, both for alleged negligent supervision and

one for alleged unsanitary living conditions.      Mother and Father also tested

positive “on numerous occasions” for both marijuana and cocaine during the

Lubbock County case.

      Baumgarten testified that several of the cases against Mother and Father

were closed because abuse had been ruled out, but the Department remained

concerned about the level of supervision in light of the injuries the children had

sustained.    Baumgarten also testified that the children are very physically

aggressive toward one another, that Mother and Father have a difficult time

controlling them, and that the family visitations were chaotic because of the

children’s behavior and the parents’ inability to control them.

      The trial regarding the termination of Mother’s and Father’s parental rights

to H.T. was in May 2008. Baumgarten testified that she and the Department had

decided about that same time to remove Mother and Father’s other children and

proceed toward termination of their parental rights.        However, she and the

Department lost contact with Mother and Father in June 2008 after they were

evicted from their apartment. After an investigation, Baumgarten was told by a

relative that Mother and Father had possibly moved with their children to the Fort

Worth area.


                                          4
      Sandra Boyle is a Department investigator in Fort Worth and investigated a

referral alleging neglectful supervision by Mother in September 2009.          Boyle

testified that the apartment where Mother lived with the children was not clean;

had roaches; and did not have food, personal hygiene products, or a place for

the children to sleep. Mother also field-tested positive for cocaine.

      Boyle testified that the three oldest children, D.A.T., T.D.T, and K.J.T., fled

the apartment through the second-story balcony when they realized she worked

for the Department. The children later told her they had been told to run if they

saw the police or any Department workers. Boyle testified that Mother told her

the family had moved to Fort Worth to avoid further termination proceedings in

Lubbock.   Mother also told Boyle that the children had not been enrolled in

school for more than a year, that she had not applied for food stamps, and that

the children had not been to the doctor or taken their medication.

      Boyle testified that she removed S.S.T. the day she visited the apartment

and that Mother called three days later and agreed to surrender the other three

children to Department custody. Father accompanied Mother when they brought

the children; he denied living in the apartment with Mother but said he did not

want to answer any other questions. Boyle said the children gave conflicting

accounts of how often Father lived in the apartment with them.

      Boyle testified that D.A.T., T.D.T, and K.J.T. had an extensive amount of

scars and fresh, suspicious looking marks all over their bodies. She testified that

she did not get an explanation for the marks, but she agreed that none of the


                                         5
children required medical attention, that the marks were possibly consistent with

marks that kids might receive while rough-housing, and that the children did not

appear underweight or malnourished.

      Ildiko Balla conducted psychological evaluations of Mother and Father.

She testified that Father has difficulty reading and writing and is borderline

intellectual functioning. He has difficulty paying attention and in dealing with and

parenting in new situations. Balla also testified that Father has anxiety issues

and depressive disorder and that he needs assistance making legal, medical,

and financial decisions.   Balla testified that Father expressed how much he

misses his children, that he regrets not being there for them more, and that he

wanted to be a better father. Balla also testified that it is possible that Mother

could provide the assistance that Father requires.

      Constance Burdick is a counselor and clinical social worker. She had met

with the family on a weekly basis during the two months preceding the trial.

Burdick testified that Mother is the spokesperson for the couple and that she

often answers questions directed to Father. She testified that Mother and Father

always had an excuse or explanation for their actions or inactions instead of

accepting responsibility, and she said there is no reason to continue counseling if

Mother and Father cannot accept that improvement is possible. Burdick testified

that Mother and Father had not admitted that they could improve their parenting

and that Mother and Father had made very little progress after six counseling

sessions.   Burdick acknowledged that Father had not expressly denied poor


                                         6
parenting and that, to keep the children, Father was willing to leave Mother if she

could not stay off of drugs. But Burdick qualified her testimony by saying that

Father cannot raise the children alone without assistance and that Mother is not

providing the assistance he needs.

      Shawna Wells-Lewis served as the Department caseworker during much

of the present case. She testified that both parents tested positive in March 2010

for cocaine, that Father gave her no contemporaneous explanation, and that

Mother claimed that grease in Father’s hair caused the positive result.       The

March 2010 drug test was Father’s only positive result, and Wells-Lewis agreed

that Father’s follow-up hair follicle test was negative and that drugs were not a

daily problem for him.    Wells-Lewis testified, however, that the parents had

shown a pattern beginning with the Lubbock County proceedings of staying clean

for a time but relapsing into occasional drug use.

      Wells-Lewis testified that both parents had attended anger management

classes and that anger management was no longer a concern. She also agreed

that Mother and Father had not caused the children’s scars and that the children

often injure one another. Wells-Lewis also confirmed both Mother’s and Father’s

employment with J.T. Kennard. She testified, however, that Mother and Father

had been unsuccessfully discharged from homemaking services on one occasion

and family counseling on two occasions.

      Wells-Lewis testified that the family had visitation every two weeks for an

hour and a half. Mother and Father consistently attended the visitations, but


                                         7
Wells-Lewis personally supervised the visitations because they were so chaotic.

The children were aggressive with one another, the parents could control only

one child at a time, and the parents did not pay attention to the risks that their

children could be injured. At one visitation at a playground, Father went to a

different playground area to play tic-tac-toe by himself. Wells-Lewis testified that

this visitation was similar to most of the other visitations.

      Wells-Lewis described D.A.T. as more withdrawn than the other children

during visitations, saying that he “takes on more of the parental role.”         She

testified that D.A.T. “loves his parents very much, and he always wants [Mother]

to braid his hair.”     She described S.S.T. as very withdrawn during recent

visitations and said that she had stayed to herself drawing pictures. Wells-Lewis

testified that T.D.T. and K.J.T. look forward to visitations, hang all over their

parents during the visits, and fight for Mother’s and Father’s attention.        She

testified that all of the children love their parents and want to return home.

      Wells-Lewis acknowledged that the children had been in four foster homes

in the previous year, but she said three of those placement changes were due to

the children’s behavioral problems. D.A.T. and S.S.T. live together, and T.D.T.

and K.J.T. each live in different foster homes. T.D.T. and K.J.T. initially lived with

D.A.T. and S.S.T. but were moved because of their behavior.              Wells-Lewis

agreed that it is not wise to continually move the children because of their

adjustment disorders.




                                           8
      Wells-Lewis testified that S.S.T. is the best-behaved of the children but

that she “has a difficult time with no and she screams and hollers and has

tantrums and can be very bossy and will bully the others.” She testified that

K.J.T. has “severe behavior issues”; that he will scream, throw tantrums, scratch

himself, try to hurt himself; and that “he will go on for an hour at a time when he

doesn’t get his way, . . . even try[ing] to destroy property.” D.A.T. lies, bullies

other children, gets into fights at school, and has tried to get S.S.T. to steal for

him. T.D.T. also fights and scratches himself. He will often have meltdowns “to

where he can’t function, and he’ll just scream and scratch himself and not be

able to function.” Wells-Lewis categorized D.A.T’s. and S.S.T.’s required level of

care as moderate and T.D.T.’s and K.J.T.’s level of care as specialized. She

testified that D.A.T.’s behavior had improved significantly in a foster home and

that T.D.T. and K.J.T. had experienced small improvements but were still

scratching themselves eleven months after removal.

      Wells-Lewis testified that she had looked into several placement options

for the children with family members and friends but that none were appropriate.

For example, B.T. left D.A.T. in a car by himself while shopping; D.W.F. and

C.T.F. had allowed Mother and Father contact with the children without

Department supervision; K.M. and E.P. refused placement; J.W., L.W., and V.A.

were denied placement because of a history with the Department; S.F. twice

withdrew from the home study; N.T. had an open investigation concerning




                                         9
neglectful supervision; and H.T. and D.T.’s parents refused placement. 5 The

children’s current foster parents do not want to adopt, but Wells-Lewis testified

that there are services available to work with the children and any prospective

adoptive parents that will be beneficial and make the children adoptable. In

addition, Wells-Lewis testified that although the children were not easily

adoptable, she planned to enroll the children in an intensive adoption program to

facilitate placement.

      Wells-Lewis testified that the children have a special need for a stable and

very secure environment because of their behavioral issues and that Mother and

Father cannot safely parent the children. In her opinion, Mother and Father have

been offered all of the services that can be offered. They completed some of

their service plan, but they are not demonstrating the skills they should have

learned from working the service plan.          Wells-Lewis testified that she is

concerned about Mother’s and Father’s ability to provide a stable, clean, and

safe environment for the children; their lengthy history with the Department; their

drug use; and their consistent failure to provide for the children. She testified she

believes, given Mother’s and Father’s lack of improvement and drug history and

despite the strong bond between them and their children, that it is in the

children’s best interest to terminate Mother’s and Father’s parental rights.



      5
       Mother’s and Father’s parental rights to H.T. and D.T. were terminated in
the Lubbock County proceedings in 2008.


                                         10
      Lara Hastings is a psychologist. She conducted psychological evaluations

of each child.    She also conducted a sibling assessment with the goal of

determining the best way to work with the children because of their strong bond

but frequent fighting. In the sibling assessment, Hastings determined that sibling

therapy could not succeed with all four until K.J.T. and T.D.T. can stabilize their

behavior and productively participate.     In fact, Hastings testified that she felt

K.J.T. and T.D.T. had deteriorated since she had conducted individual

psychological assessments approximately nine months earlier.

      Hastings testified that T.D.T. has an adjustment disorder with behavioral

and emotional disturbances. He experiences distress from being separated from

Mother and “possibly both of his parents,” and he experiences stress from his

home environment. T.D.T. also has depressive disorder that manifests itself in

acting out, anger, and suicidal ideations, and it causes him to be emotionally

overwhelmed.     Hastings testified that T.D.T. may also have attention deficit,

hyperactivity disorder (ADHD) and may be borderline intellectual functioning and

that those things need to be ruled out or confirmed.

      Hastings testified that D.A.T. has adjustment disorder that manifests with

emotional and behavioral disturbances. K.J.T. has the same adjustment disorder

with similar manifestations, but he also has ADHD.          Math disorder, reading

disorder, and borderline intellectual functioning also need to be confirmed or

ruled out for K.J.T. S.S.T. is the best-adjusted of all of the children, but she also




                                         11
has adjustment disorder with emotional distress manifestations and is “perturbed”

by being separated from Mother.

      Hastings testified that all of the children lack awareness of appropriate

boundaries and that their home environment before entering foster care

contributed to their adjustment disorders. She also testified that each of the

children’s adjustment disorder could be treated through additional therapy.

      Elvina Hiatt is the court-appointed special advocate (CASA) for the

children. She testified that Mother’s and Father’s past drug use concerns her

and that she worries about keeping the children in a status where they could

ultimately be returned to their parents.    Hiatt also expressed concern over

Mother’s and Father’s lack of progress after working their service plan and

testified that she does not believe Mother and Father will ever change since they

have had years of Department history without change.

      Hiatt described D.A.T. as a shy child who is respectful of his foster mother

and who seems to be doing well.       She described S.S.T. as very open and

talkative, dramatic and creative, very sweet, and doing well in foster care. Hiatt

testified that K.J.T. is more active and less able to control his behavior. She

testified that he seems calmer in his newest foster placement but acknowledged

that he had not been there long enough to consider his behavioral change

permanent. Hiatt described T.D.T. as extremely shut down toward her initially

but that he had opened up over time.        She said, however, that “something




                                       12
happened,” and T.D.T. reverted back to being shut down. He opened up again

after being transferred to a therapeutic foster home.

       Hiatt also testified about each of the children’s progress in school. S.S.T.

is on target and doing well. D.A.T. is one grade-level behind and reads two

years behind for his age, and T.D.T. will probably repeat first grade. K.J.T. is one

grade-level behind for his age, and he was recently placed in special education

classes.

       Hiatt testified that the children are active, rowdy, and rough during

visitations and that although Mother yells directives to them, they largely ignore

her.   She testified that Father is not very active in the visitations and will

occasionally play with the children, and she said that the children do not

approach Father to interact with him. Hiatt testified that Father will occasionally

discipline the children but that they do not usually respond unless Mother also

gets involved. She agreed that Father had been more active and involved with

the children during recent visitations, but she testified that his parenting skills

seem not to have progressed. Hiatt also testified that, in her opinion, the children

separate well from their parents after visitations.

       Hiatt testified that K.J.T. talks about his parents a lot and wants to go

home. D.A.T. says he wants to go home, but when he does so, he does not

make eye contact, speaks very softly, and acts as if he is not being honest.

       Hiatt recommended termination of Mother’s and Father’s parental rights.

She does not believe Mother and Father can provide a safe environment for the


                                         13
children, and she testified that she believes the children have better opportunities

in foster care than Mother and Father can provide.

      Mother testified that Father had recently been very helpful by becoming

more involved with the children’s discipline and that she had learned in parenting

classes that both parents must be involved. Mother also testified that she had

learned in homemaking classes the importance of setting priorities and of

practicing financial stability. She testified that she and Father can provide more

stability for the children than before because they have steady employment as

well as extended family and their church to support them. Mother acknowledged

that she and Father do not currently have any money in a bank account, that they

would require government assistance, and that they would have to find a larger

place to live.   She testified, however, that she had already located a larger

apartment for the same amount of monthly rent and that her boss had offered to

advance her the money to buy beds for the children.

      J.T. Kennard testified that he is Mother and Father’s pastor and employer.

Mother and Father have worked for him in his junkyard for approximately two

years. Kennard testified that Mother and Father are good parents, that they

consistently attend work, and that he allowed them to miss work when they

attended appointments for their service plan. He also testified that Mother and

Father maintain a home cleaner than his own, but he acknowledged that he had

never been inside their apartment and had only been to their apartment to pick

them up for work or for church.


                                        14
      Father testified that he does not like to talk much and that he had always

been that way. He testified that he has supported his family since he began

working for Kennard, and he expressed his belief that he could care for the

children without Mother’s help if necessary. Father also testified that he does not

think the children have behavior problems and that he thinks he controls them

well enough during visitations. Father acknowledged that he does not have a

driver’s license, and he denied using cocaine in March 2010, saying that he

tested positive because he had associated with others that had used cocaine.

                               III. Applicable Law

      A parent’s rights to “the companionship, care, custody, and management”

of his or her children are constitutional interests “far more precious than any

property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights

are of constitutional magnitude, they are not absolute. Just as it is imperative for

courts to recognize the constitutional underpinnings of the parent-child

relationship, it is also essential that emotional and physical interests of the child

not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). 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 for 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).           We strictly scrutinize termination


                                         15
proceedings and strictly construe involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, no pet.).

      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).

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).

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.” Id. § 101.007 (West 2008). Due process demands this heightened

standard because termination results in permanent, irrevocable changes for the

parent and child. 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

modification).

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

the factfinder’s findings and do not supplant the judgment with our own. In re


                                          16
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 subsections (D) and (E) 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; C.H., 89 S.W.3d at 28. 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.

                               IV. Father’s Appeal

      The trial court found that Father had (1) engaged in conduct or knowingly

placed the children with persons who had engaged in conduct which endangered

the physical or emotional well-being of the children, (2) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which

endangered their physical or emotional well-being, and (3) previously had his

parent-child relationship terminated with respect to another child based on these

same grounds. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (M). Father

argues in his first two issues that the evidence is factually insufficient to support

the section 161.001(1)(D) and (E) findings, and he argues in his third issue that

the Department’s pleadings do not support the section 161.001(1)(M) finding.




                                         17
A. Endangerment Findings

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

insufficient to support the trial court’s section 161.001(1)(D) and (E) findings.

      1. 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 evidence

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

source of endangerment to the children’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.).

Parental and caregiver illegal drug use and drug-related criminal activity likewise

supports the conclusion that the children’s surroundings endanger their physical

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

Antonio 1998, pet. denied).

      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


                                         18
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 (E) must be based on more than a single act or

omission; the statute requires a voluntary, deliberate, and conscious 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).

      2. Discussion

      Baumgarten, Mother and Father’s caseworker in Lubbock, described

Mother and Father’s lengthy history with the Department, their nine Department

referrals between 1997 and 2005, and their drug use. Boyle, the investigator in

Fort Worth, testified that the children had not been enrolled in school for more

than a year in 2009, that Mother had not applied for food stamps, and that the

children had not been to the doctor or taken their medication. Father denied

living in the apartment with Mother and the children at the time but declined to

answer additional questions, and the children gave conflicting accounts of how

often Father lived in the apartment with them.




                                       19
      Burdick, the counselor for the family, testified that Mother and Father

always had an excuse or explanation for their actions or inactions instead of

accepting responsibility, and she said there is no reason to continue counseling if

Mother and Father cannot accept that improvement is possible.                 Burdick

acknowledged that Father had not expressly denied poor parenting, but she

testified that Father cannot raise the children alone without assistance.

      Although she agreed that drugs were not a daily problem for Father,

caseworker Wells-Lewis testified that both parents tested positive in March 2010

for cocaine, that Father gave her no contemporaneous explanation, and that

Mother claimed that grease in Father’s hair caused the positive result. Wells-

Lewis also testified, however, that both parents had a pattern of staying clean for

a time but relapsing into occasional drug use.

      Wells-Lewis described the children as aggressive with one another, and

she testified that neither parent pays attention to the risks that their children could

be injured. She also testified that Mother and Father cannot safely parent the

children. In her opinion, Mother and Father have been offered all of the services

that can be offered. Although they completed some of their service plan, they

have not, in her opinion, demonstrated the skills they should have learned from

working the service plan.       Hiatt, the CASA, also expressed concern over

Mother’s and Father’s lack of progress after working their service plan and

testified that she does not believe Mother and Father will ever change since they

have had years of Department history without change. Father testified that he


                                          20
does not think the children have behavior problems and that he controls them

well enough during visitations.

       After reviewing the entire record, we hold that a factfinder could reasonably

form a firm conviction or belief that Father had engaged in conduct or knowingly

placed the children with persons who had engaged in conduct which endangered

the physical or emotional well-being of the children or that Father had knowingly

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

which endangered their physical or emotional well-being. See Tex. Fam. Code

Ann. § 161.001(1)(D), (E); C.H., 89 S.W.3d at 28. We therefore overrule Father’s

first and second issues.6

B. Best Interests of the Children

       Father argues in his fourth issue that the evidence is factually insufficient

to support the trial court’s finding that termination of his parental rights to the

children 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”).




       6
       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 Father’s third issue. See id.; see also Tex. R. App. P. 47.1,
47.4.


                                         21
      1. 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). The

following factors should be considered in evaluating the parent’s willingness and

ability to provide the child with a safe environment:

      (1) the child’s age and physical and mental vulnerabilities;

      (2) the frequency and nature of out-of-home placements;

      (3) the magnitude, frequency, and circumstances of the harm to the child;

      (4) whether the child has been the victim of repeated harm after the initial
      report and intervention by the department or other agency;

      (5) whether the child is fearful of living in or returning to the child’s home;

      (6) the results of psychiatric, psychological, or developmental evaluations
      of the child, the child’s parents, other family members, or others who have
      access to the child’s home;

      (7) whether there is a history of abusive or assaultive conduct by the
      child’s family or others who have access to the child’s home;

      (8) whether there is a history of substance abuse by the child’s family or
      others who have access to the child’s home;

      (9) whether the perpetrator of the harm to the child is identified;

      (10) the willingness and ability of the child’s family to seek out, accept, and
      complete counseling services and to cooperate with and facilitate an
      appropriate agency’s close supervision;

      (11) the willingness and ability of the child’s family to effect positive
      environmental and personal changes within a reasonable period of time;


                                          22
      (12) whether the child’s family demonstrates adequate parenting skills,
      including providing the child and other children under the family’s care
      with:

             (A) minimally adequate health and nutritional care;

             (B) care, nurturance, and appropriate discipline consistent with
             the child’s physical and psychological development;

             (C) guidance and supervision consistent with the child’s
             safety;

             (D) a safe physical home environment;

             (E) protection from repeated exposure to violence even
             though the violence may not be directed at the child; and

             (F) an understanding of the child’s needs and capabilities;
             and

      (13) whether an adequate social support system consisting of an extended
      family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116. Other, 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;


                                         23
      (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

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.

      2. Discussion

      The children range in age from eleven to five years old, and each is

emotionally vulnerable. K.J.T. has ADHD, and T.D.T. has a depressive disorder

that manifests through suicidal ideations and anger.           Each child has an

attachment disorder, takes medication, and has behavioral issues. Three of the

four children are not on pace academically.          Wells-Lewis testified that the

children have a special need for a stable and very secure environment. See

Holley, 544 S.W.2d at 372 (listing “the emotional and physical needs of the child

now and in the future” as relevant to best interest determination).




                                          24
      Father has difficulty reading and writing, is borderline intellectual

functioning, and needs assistance with making legal, medical, and financial

decisions.   He also has anxiety issues, a depressive disorder, and difficulty

parenting in new situations. See In re T.T.F., 331 S.W.3d 461, 488 (Tex. App.—

Fort Worth 2010, no pet.) (considering mother’s inability to recognize risk to her

child and mother’s intellectual capacity in best interest analysis). Mother is the

spokesperson for the couple. Father is often detached, even at visitations, but

had exhibited improvement just before trial. But see In re Z.C., 280 S.W.3d 470,

476 (Tex. App.—Fort Worth 2009, pet. denied) (explaining that a father’s “efforts

to improve his ability to effectively parent on the eve of trial [were] not enough to

overcome a decade of poor parenting and neglect”).

      Father expressed regret about being separated from his children, a desire

to be a better father, and a willingness to leave Mother if necessary, but Burdick

testified that Father cannot raise the children alone without assistance. Father

also tested positive for cocaine six months before trial. See Tex. Fam. Code

Ann. § 263.307(b)(8) (listing history of drug use as relevant best interest factor).

      The children are aggressive with one another, and Mother and Father do

not seem to grasp the risk of injury to their children in various settings, including

supervised visitations. There is no evidence that Mother or Father physically

abused the children, but the children apparently injure one another. Mother and

Father had nine Department referrals while living in Lubbock, and all of the

referrals involved neglectful supervision.      The children were removed from


                                         25
Mother and Father twice in Lubbock and might have been removed again, but

the family moved to Fort Worth. When the children were removed in Fort Worth

in 2009, they had extensive scarring and bruising on their bodies.

      Father has not denied poor parenting, but there is testimony that he and

Mother always offer excuses rather than an acknowledgement of responsibility.

Mother and Father had not admitted that they could improve their parenting, and

Father denied at trial that the children have behavioral problems. There is also

testimony that Mother and Father had not demonstrated the skills they should

have learned through the service plan and that they have been offered all of the

services that can be offered. See id. § 263.307(b)(10), (11) (listing as relevant

best interest factors the parents’ willingness to accept and complete services

offered and to effect positive changes within reasonable time).

      Father testified that he has support available from family and friends, and

Mother testified that she and Father could provide more stability than before

because of their steady employment, their extended family, and the support

offered by their church. Their employer has also offered assistance in the form of

advances on their wages when necessary to buy things for the children. See id.

§ 263.307(b)(13) (listing social support system as relevant best interest factor).

Mother and Father, combined, earned approximately $37,440 per year and had

lived in the same townhome for approximately nine months before trial. Mother

admitted, however, that she and Father would have to find a larger place to live if

the children were returned to them, and Mother had found one for the same rent.


                                        26
      There is a strong bond between the children and their parents, and the

children would like to return to their parents. See Holley, 544 S.W.2d at 372

(listing desires of child as relevant to best interest analysis). The children had

been in foster care for almost one year at the time of trial, and although they had

been in multiple foster homes, three of the changes were a result of the

children’s behavioral problems.

      Wells-Lewis testified that the Department would like to have the children

adopted. See id. (listing proposed placement plan as relevant to child’s best

interest). Wells-Lewis testified that she had looked into almost twenty family

members and friends as possible placements for the children but that none were

appropriate.   The children’s current foster parents do not want to adopt, but

Wells-Lewis testified that the Department has services available to work with the

children and any prospective adoptive parents to facilitate adoption.

      Considering the factors listed in family code section 263.307(b) and

discussed in Holley, and viewing all the evidence in a neutral light, we conclude

that the trial court could reasonably form a firm conviction or belief that

termination of Father’s parental rights is in the children’s best interests. See

H.R.M., 209 S.W.3d at 108; see also Shaw v. Tex. Dep’t of Family & Protective

Servs., No. 03-05-00682-CV, 2006 WL 2504460, at *7 (Tex. App.—Austin Aug.

31, 2006, pet. denied) (mem. op.) (holding despite improvement before trial,

termination was in child’s best interest considering mother’s borderline

intellectual functioning, psychological disorder, drug dependence, lack of


                                        27
improvement in parenting skills, and lack of accountability). We therefore hold

that the evidence is factually sufficient to support the trial court’s best interest

finding, and we overrule Father’s fourth issue.

                               V. Mother’s Appeal

      Mother’s court-appointed appellate counsel has filed a motion to withdraw

as counsel and a brief in support of that motion. In the motion, counsel avers

that he has conducted a professional evaluation of the record and, after a

thorough review of the applicable law, has reached the conclusion that there are

no arguable grounds to be advanced to support an appeal of this cause and that

the appeal is frivolous.

      Counsel’s brief and motion meet the requirements of Anders by presenting

a professional evaluation of the record demonstrating why there are no reversible

grounds on appeal and referencing any grounds that might arguably support the

appeal. See Anders, 386 U.S. at 741, 87 S. Ct. at 1398; Mays v. State, 904

S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.).            This court has

previously held that Anders procedures apply in parental rights termination cases

when the Department has moved for termination. In re K.M., 98 S.W.3d 774,

776–77 (Tex. App.—Fort Worth 2003, no pet.). Mother was given the opportunity

to file a pro se brief on her own behalf, but she did not do so.

      In our duties as a reviewing court, we must conduct an independent

evaluation of the record to determine whether counsel is correct in determining

that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.


                                         28
Crim. App. 1991); Mays, 904 S.W.2d at 923. Only then may we grant counsel’s

motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346,

351 (1988).

      We have carefully reviewed the appellate record and Mother’s appellate

counsel’s brief. We agree with her appellate counsel that the appeal is wholly

frivolous and without merit. We find nothing in the record that might arguably

support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.

2005); Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641,

646–47 (Tex. App.—Austin 2005, pet. denied). Therefore, we grant Mother’s

appellate counsel’s motion to withdraw and affirm the trial court’s judgment

terminating Mother’s parental rights to her children.




                                        29
                                VI. Conclusion

      Having granted the motion to withdraw filed by Mother’s counsel, and

having overruled Father’s dispositive issues, we affirm the trial court’s judgment

terminating Father’s and Mother’s parental rights to D.A.T., K.J.T., T.D.T., and

S.S.T.



                                                  ANNE GARDNER
                                                  JUSTICE

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

DAUPHINOT, J., concurs without opinion.

DELIVERED: May 31, 2012




                                       30
