                                   IN THE
                           TENTH COURT OF APPEALS

                               No. 10-13-00209-CV

           IN THE INTEREST OF A.Y. AND P.J.T., CHILDREN



                           From the 74th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1734-3


                           MEMORANDUM OPINION


      After a jury trial, the trial court entered an order terminating Appellant C.T.’s

parental rights to her two children, A.Y. and P.J.T.   Raising five issues, Appellant

appeals. We will affirm.

      The jury found the following predicate violations as grounds for termination of

Appellant’s parental rights: (1) Appellant knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered the children’s

physical or emotional well-being (Family Code subsection 161.001(1)(D)); (2) Appellant

engaged in conduct or knowingly placed the children with persons who engaged in

conduct that endangered the children’s physical or emotional well-being (Family Code
subsection 161.001(1)(E)); and (3) Appellant failed to comply with provisions of a court

order specifically establishing actions necessary for the parent to obtain return of the

children (Family Code subsection 161.001(1)(O)). The jury also found that termination

of Appellant’s parental rights was in the children’s best interest.

        In a proceeding to terminate the parent-child relationship brought under section

161.001, the Department must establish by clear and convincing evidence two elements:

(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,

termed a predicate violation; and (2) that termination is in the best interest of the child.

TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2013); Swate v. Swate, 72 S.W.3d 763,

766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements

are established by clear and convincing evidence, and proof of one element does not

relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d

367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under

section 161.001(1) were found in the trial court, we will affirm based on any one ground

because only one predicate violation under section 161.001(1) is necessary to a

termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet.

denied), overruled in part on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.—

Waco 2012, pet. denied).

                                           Predicate Violation

        In issue one, Appellant contends that there is no or insufficient evidence to

support the jury’s verdict for each child that she failed to comply with provisions of a

court order specifically establishing the actions necessary for the parent to obtain return

In the Interest of A.Y. and P.J.T., Children                                          Page 2
of the child who has been in the permanent or temporary managing conservatorship of

the Department for not less than nine months as a result of the child’s removal from the

parent under Chapter 262 for the abuse or neglect of the child.1

        The standards of review for legal and factual sufficiency in termination cases are

well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).                  In reviewing the legal

sufficiency, we view all the evidence in the light most favorable to the finding to

determine whether a trier of fact could reasonably have formed a firm belief or

conviction about the truth of the Department’s allegations. In re J.L., 163 S.W.3d 79, 84-

85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed

evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the

factual sufficiency of the evidence, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing.                      Id. We must

consider the disputed evidence and determine whether a reasonable fact-finder could

have resolved that evidence in favor of the finding. Id. If the disputed evidence is so

significant that a fact-finder could not reasonably have formed a firm belief or

conviction, the evidence is factually insufficient. Id.

        Appellant admitted at trial that she did not complete her court-ordered service

plan; in her own words, she “gave up.” But on appeal, Appellant argues that there is no

or insufficient evidence that the children were removed based on abuse or neglect of the


1
 The trial court’s termination order erroneously referred to the “father” on the subsection 161.001(1)(O)
ground, but the trial court subsequently entered a nunc pro tunc termination order referring to the
“mother” on this ground.

In the Interest of A.Y. and P.J.T., Children                                                      Page 3
children. More specifically, Appellant asserts that there is no clear and convincing

evidence that Appellant “actually” abused A.Y. and that there is no evidence at all of

any abuse or neglect of P.J.T.

        On April 24, 2012, Tanya McFatridge, who was a Department investigator at the

time, was assigned to investigate a confidential report that A.Y. had been physically

abused by Appellant—that Appellant had hit A.Y. in the nose and caused a nosebleed.

As a part of her investigation, McFatridge researched Appellant’s history and learned of

Appellant’s previous involvement with the Department. The first involvement was in

October 2010. Between October 2010 and December 2010, the Department received four

call referrals involving Appellant. The allegation in the October 2010 call referral was

that Appellant had hit A.Y. in the nose and caused a nosebleed. Another call alleged

that Appellant had physically abused P.J.T., who had a bruise on his face and a bruise

on his back. The other two allegations involved other family members. Three of the

reports were ruled as “unable to determine,” and one report against an uncle was

“ruled out.” McFatridge explained that the three investigations were ruled “unable to

determine” because, although the children had visible injuries, they could not provide

consistent explanations of what had happened because of P.J.T.’s age and A.Y.’s speech

impairment.

        Because of those four reports, the Department offered Appellant Family Based

Safety Services (FBSS) in February 2011.       Appellant received parenting classes,

individual counseling, and anger management. Not long after offering these services to

Appellant, the Department received yet another referral alleging that Appellant had hit

In the Interest of A.Y. and P.J.T., Children                                      Page 4
A.Y. in the face and caused injury. The Department offered services to Appellant over

an eight-month period, and after she completed her services, the Department closed its

case. About six months later, on April 23, 2012, the Department received the referral

resulting in the instant case.

          On April 27, McFatridge contacted Appellant and asked her to bring A.Y. to her

office. Upon arrival, McFatridge noticed that A.Y., who was age eight, had a “fat,”

“swollen” lip. McFatridge spoke with A.Y. privately and asked her how she got the

swollen lip, and A.Y. first said that she had hit it on the television but then said she did

not know how it had happened. Before McFatridge completed her interview with A.Y.,

Appellant barged into McFatridge’s office, “irate” and “screaming and yelling,” telling

McFatridge that she had no right to ask A.Y. questions. Appellant took A.Y. and left the

office.

          To continue her investigation and interview of A.Y., a few days later,

McFatridge, with law enforcement, went to A.Y.’s school to speak with A.Y. again. A.Y.

told McFatridge that Appellant had hit her in the mouth with a closed fist, causing the

swollen lip. A.Y. also said that Appellant had hit her in the nose with an open hand

and had caused the nosebleed. McFatridge said that the only time that A.Y.’s story

deviated was the first time at the Department’s office when Appellant was just outside

of McFatridge’s office.

          Appellant came to the school to pick up A.Y., and when she learned that

McFatridge was there talking to A.Y., Appellant became “very irate” and was

“screaming and yelling.” They all agreed to move the meeting to the Hewitt Police

In the Interest of A.Y. and P.J.T., Children                                          Page 5
Department, and there they agreed that the children would stay with P.J.T.’s paternal

grandmother, Robyn, while the Department continued its investigation, which resulted

in a “reason-to-believe” finding. Robyn had been listed first by Appellant as a relative

for the children to be temporarily placed with. A few weeks later, Appellant was

arrested for injury to a child.

        P.J.T., who was age three, initially said that Appellant had hit A.Y. in the nose

with an open hand, but he later said that a shampoo bottle had fallen in the bathtub and

had hit A.Y. in the nose. Appellant also said that a shampoo bottle had hit A.Y. to cause

the nosebleed. Appellant initially denied hitting the children but invoked her privilege

against self-incrimination when asked if A.Y. was telling a lie when reporting that

Appellant had hit her. Appellant’s mother said that she did not see any injury on A.Y.

later on the day that Appellant was alleged to have hit A.Y. in the face and caused the

nosebleed.

        McFatridge concluded that Appellant engaged in conduct that placed the

children in danger, that it endangered their physical or emotional well-being, and that

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

that endangered the children’s physical or emotional well-being.

        Slade Dickson, the children’s therapist, testified that A.Y. told him that her

mother had hit her on the face.                E.L., Robyn’s live-in boyfriend, said that A.Y.

volunteered to him that Appellant had been hitting A.Y.

        The supreme court recently held:

        So while subsection O requires removal under chapter 262 for abuse or

In the Interest of A.Y. and P.J.T., Children                                            Page 6
        neglect, those words are used broadly. Consistent with chapter 262’s
        removal standards, “abuse or neglect of the child” necessarily includes the
        risks or threats of the environment in which the child is placed. Part of
        that calculus includes the harm suffered or the danger faced by other
        children under the parent’s care. If a parent has neglected, sexually
        abused, or otherwise endangered her child’s physical health or safety,
        such that initial and continued removal are appropriate, the child has been
        “remov[ed] from the parent under Chapter 262 for the abuse or neglect of
        the child.”

In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013).2

        On Appellant’s legal insufficiency complaint on the subsection 161.001(1)(O)

ground, viewing all the evidence in the light most favorable to the jury’s finding, we

hold that a reasonable factfinder could have formed a firm belief or conviction that the

children were removed for abuse or neglect.                    For Appellant’s factual sufficiency

complaint on that ground, after considering the disputed evidence, we hold that a

reasonable factfinder could have formed a firm belief or conviction that the children

were removed for abuse or neglect. Accordingly, the evidence is legally and factually

sufficient on the subsection 161.001(1)(O) ground, and we overrule issue one. We thus

need not address issues three and four, which complain of the legal and factual

insufficiency of the evidence to support termination under subsections 161.001(1)(D)

and 161.001(1)(E).

                                               Best Interest

        In issue two, Appellant contends that there is no or insufficient evidence to

support the jury’s findings that termination was in the children’s best interest. In

determining the best interest of a child, a number of factors have been considered,
2
 In E.C.R., the supreme court plainly held that subsection 161.001(1)(O) can be satisfied by risk of abuse
or neglect, which would apply to the removal of P.J.T. See E.C.R., 402 S.W.3d at 246-48.

In the Interest of A.Y. and P.J.T., Children                                                       Page 7
including (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; (6) the plans for the child by these individuals; (7)

the stability of the home; (8) the acts or omissions of the parent that may indicate the

existing parent-child relationship is not a proper one; and (9) any excuse for the acts or

omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive, but

simply indicates factors that have been or could be pertinent. Id.

        The Holley factors focus on the best interest of the child, not the best interest of

the parent. Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.—Dallas

1995, no writ). The goal of establishing a stable permanent home for a child is a

compelling state interest.           Id. at 87.   The need for permanence is a paramount

consideration for a child’s present and future physical and emotional needs. In re

S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc).

        Larisa Sheppard, the children’s caseworker, recommended that Appellant’s

parental rights be terminated and that they remain with and be adopted by Robyn; she

said that it was in the children’s best interest. Sheppard testified that Robyn is meeting

the children’s needs. Robyn testified that she wants the children to stay with her and

that she wants to adopt them.

        Dickson, the children’s therapist, said that the children are happy in Robyn’s

home and are thriving; they feel safe with Robyn and are bonded to Robyn, who

Dickson said was meeting the children’s needs.            Dickson believes that it is in the

In the Interest of A.Y. and P.J.T., Children                                          Page 8
children’s best interest to remain with Robyn, but he thinks that if Appellant “earns her

way back” in the future, it would be in the children’s best interest for them to have

Appellant back in their lives. Robyn also said that she would be willing to let Appellant

have a relationship with the children in the future “under certain conditions” and “in

baby steps.” E.L. said that it would possibly be a good idea for the children to be

returned to Appellant in the future if she “stepped up” but that she has not done that to

get her children back. E.L. also testified that A.Y. told him that she does not want to go

back to her mother because she does not want to get hit. A.Y. was recently waking up

crying and with anxiety about possibly going back to her mother.

         Robyn, who is a natural grandparent to only P.J.T., testified that she does not see

A.Y. any differently and treats A.Y. as her granddaughter. Dickson said it would be a

travesty and “another huge loss” to separate the children because of their bond for each

other.

         Appellant testified that her rights should not be terminated, that she loves her

children, and that she looks forward to getting her children back. She said that it was in

the children’s best interest to not have her parental rights terminated. Because of a

pending felony charge for injury to a child pertaining to the physical abuse of A.Y.,

Appellant had not seen the children in the year before trial because a bond condition

prohibited her from seeing them.

         Appellant’s mother testified that she did not want Appellant’s parental rights

terminated and that it was in the children’s best interest for Appellant to remain in their

lives. Appellant’s father Gary said that it was best for the children to be back with their

In the Interest of A.Y. and P.J.T., Children                                          Page 9
mother. Dana, a friend of Appellant’s mother who had observed Appellant with the

children, did not think there was any basis to terminate Appellant’s parental rights and

thought that the children should be returned to Appellant. Dana said that Appellant

was an “excellent caregiver” and a “good mom.” Dana’s daughter Amanda, a friend of

Appellant and who also observed Appellant parent the children, said that Appellant

was a good mother and that the children should be returned to Appellant. Amanda did

not think that termination was in the children’s best interest.

        Desires of the children: Pamela, Appellant’s mother, said that A.Y. and P.J.T.

expressed to her that they wanted to see Appellant and that they missed her and loved

her. Gary testified that the children have asked about Appellant. Dickson said that it is

common for abused children to continue to love their parent. See In re W.S.M., 107

S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.) (“Although a child’s love of his

natural parents is a very important consideration in determining the best interests of the

child, it cannot override or outweigh the overwhelming and undisputed evidence

showing that the parents placed or allowed the child to remain in conditions, and

engaged in conduct or placed the child with persons who engaged in conduct, which

endangers the physical and emotional well-being of the child. The child’s love of his

parents cannot compensate for the lack of an opportunity to grow up in a normal and

safe way equipped to live a normal, productive, and satisfying life.”).

        Sheppard testified that both children are happy in Robyn’s home and want to

stay there and that they are bonded with Robyn and E.L. Robyn said that A.Y. does not

want to see Appellant but that P.J.T. asked to see her—initially often, but over time, it

In the Interest of A.Y. and P.J.T., Children                                       Page 10
tapered off. Dickson said that A.Y., who was age nine at the time of trial, initially

wanted to see Appellant, but A.Y. told him a couple of weeks before trial that she

wanted to live with Robyn and did not want to see Appellant. When asked why, A.Y.

said that it was because her mother hits her. A.Y. told Dickson that Appellant was

hitting her in the face.

        The evidence on this factor is disputed but weighs in favor of the jury’s best-

interest findings.

        The children’s emotional and physical needs now and in the future and the emotional and

physical danger to the children: Evidence of past misconduct or neglect can be used to

measure a parent’s future conduct. See Williams v. Willaims, 150 S.W.3d 436, 451 (Tex.

App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco

1992, no writ) (“Past is often prologue.”); see also In re V.A., No. 13-06-00237-CV, 2007

WL 293023, at *5-6 (Tex. App.—Corpus Christi 2007, no pet.) (mem. op.) (considering

parent’s past history of unstable housing, unstable employment, unstable relationships,

and drug usage). We will not repeat here the above-detailed evidence pertaining to

Appellant’s alleged physical abuse of A.Y.

        At the time her service plan was created, Appellant was on felony probation for

debit-card abuse, which was revoked, and she served six months in state jail. At the

time of trial, Appellant’s felony charge for injury to a child was still pending. She had a

prior felony charge for unauthorized use of a vehicle, to which she pleaded guilty and

was placed on probation, which was revoked and resulted in incarceration soon after

A.Y. was born. Appellant’s criminal conduct that resulted in the revocation included

In the Interest of A.Y. and P.J.T., Children                                            Page 11
charges for four forgeries and a theft by check. Appellant, who was incarcerated for

one-third of A.Y.’s life and eight months of P.J.T.’s life, agreed that her going in and out

of jail was not stable for the children and was not a good influence for them. Appellant

also admitted that she used marijuana for six weeks after the children were removed,

and she invoked her privilege against self-incrimination when asked about prior drug

use.

        A parent’s engaging in criminal conduct endangers the emotional well-being of a

child because of the parent’s resulting incarceration. See Karl v. Tex. Dept. Prot. & Reg.

Serv’s., No. 03-03-00655-CV, 2004 WL 1573162, at *2-3 (Tex. App.—Austin July 15, 2004,

no pet.) (mem. op.); see also In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004,

pet. denied) (“conduct that subjects a child to a life of uncertainty and instability

endangers the physical and emotional well-being of a child”).

        Dr. James Shinder, a psychologist, did a psychological evaluation of Appellant,

and he found it “a major concern” that Appellant did not fully disclose her criminal

history to him, and Dr. Shinder had concerns about Appellant’s honesty also because

she denied being abusive to her child or children.             He recommended against

reunification and said that it would be dangerous to return the children to Appellant.

        Appellant’s witnesses testified that Appellant met her children’s needs, that they

had never seen her endanger the children, and that she was not a danger to them.

        The evidence on these factors weighs in favor of the best-interest findings.

        Parental abilities and available programs:   As noted above, Appellant did not

complete her service plan. See In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth

In the Interest of A.Y. and P.J.T., Children                                           Page 12
2003, no pet.) (factfinder can infer from parent’s failure to work programs offered by

Department that parent “did not have the ability to motivate herself to seek out

available resources needed … now or in the future.”). Robyn and Dickson both thought

that Appellant has an anger problem—especially toward A.Y.—and Appellant did not

complete the required anger-management and parenting classes before trial, despite

Sheppard setting them up for Appellant twice.           Appellant’s mother admitted that

Appellant has anger-control issues, but her father said the Appellant did not have an

anger problem. Initially, Appellant was unsuccessfully discharged from individual

therapy for her sporadic attendance, but with a new therapist Appellant was

consistently attending but had not completed it.

        Evidence of a parent’s home and job instability can show a lack of parental

abilities.   Doe v. Brazoria Cty. Child Prot. Serv’s., 226 S.W.3d 563, 574 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). Appellant was age twenty-nine at the time of trial.

She has been married five times to four different men, and she married her most recent

husband while he is serving a prison sentence of more than forty years. Appellant

agreed that her four divorces have not been stable for the children. When A.Y. was

born, Appellant was not working, and she had sporadic employment after that. During

the case, Appellant held only one job—delivering newspapers—for a short while (two

to three months) and had not worked in the five months before trial. She said she had

started a new job just before trial, despite initially testifying that she did not have a job;

Appellant said that she forgot she had started the new job just before trial. Appellant

has moved approximately twelve times during her children’s lives and has been

In the Interest of A.Y. and P.J.T., Children                                           Page 13
imprisoned three times. Appellant agreed that it has not been in the children’s best

interest to live in such a chaotic environment. Dickson said that Appellant’s many

moves and the exposure of the children to multiple father figures—Appellant’s

instability—caused the children anxiety.

        Appellant’s mother said that Appellant has been a “real good mother” and takes

care of her children. Appellant’s father said that Appellant was a “very good caretaker”

of her children and that they are “perfectly safe” with her.

        Robyn initiated the children’s therapy with Dickson and has never missed an

appointment. Robyn has also addressed the children’s educational needs, especially for

A.Y., who is in special education with a learning disability and a speech impairment,

which has improved while in Robyn’s care.           P.J.T. also has speech problems, and

Dickson said that it too is improving. Dickson testified that Robyn’s behavior with the

children has always been appropriate, that she has demonstrated the ability to

implement his suggestions, and that he believes she would seek out other necessary

services for the children.

        The evidence on these factors weighs in favor of the best-interest findings.

        Plans for child and stability of the home: The Department’s plan was for the children

to remain with Robyn, who wants to adopt them. Robyn, who was employed fulltime,

took on an additional parttime job to help support the children, and she and E.L. moved

into a larger apartment for the children.       E.L. also accepted a promotion at work

because it meant more money to care for the children, even though he did not

particularly want the promotion.

In the Interest of A.Y. and P.J.T., Children                                           Page 14
        E.L. readily admitted to his criminal history—a DWI in 1984 and another in

2004—but he said that he is not an alcoholic and also admitted to occasionally drinking

around the children. He also had two old hot-check cases (in 1988 and 2004) and a 1975

public intoxication arrest. E.L. says he has not used drugs in fifteen years and that he is

randomly drug-tested at work. Both Robyn and E.L. said that he has followed the

Department’s guidelines for his supervision of the children, and E.L. testified that he is

bonded to the children and loves them.

        Appellant’s plan for the children was for them “to finish school.” Appellant,

who was living with and being supported by her mother, said she would stay home

with the children to provide for them.

        The evidence on these factors weighs in favor of the best-interest findings.

        Acts or omissions and any excuses for them: Appellant testified that she could not

initially work her service plan because she was incarcerated for six months when this

case began and none of the services was available in jail. She was released in November

2012 but did not initiate any services for a couple of months. Appellant admitted that

her incarceration was her fault, and she said that she did not complete her services

because she “gave up” when the Department decided not to pursue reunification.

Appellant had not seen the children in the year before trial because a bond condition for

Appellant’s pending felony charge for injury to a child prohibited her from seeing them.

        The evidence on these factors weighs in favor of the best-interest findings.

        Conclusion: Viewing all the evidence in the light most favorable to the jury’s

findings, we hold that a reasonable factfinder could have formed a firm belief or

In the Interest of A.Y. and P.J.T., Children                                           Page 15
conviction that termination was in the children’s best interest. For Appellant’s factual

sufficiency complaint on best interest, after considering the disputed evidence, we hold

that a reasonable factfinder could have formed a firm belief or conviction that

termination was in the children’s best interest. The evidence is legally and factually

sufficient to support the jury’s best-interest findings. We overrule issue two.

                                               Intervention

        In issue five, Appellant contends that the trial court erred in denying the

intervention of Appellant’s father Gary, the maternal grandfather of the children. The

Department asserts that Appellant lacks standing to make this complaint on appeal for

Gary, who did not appeal the trial court’s ruling. We agree. See, e.g., In re T.N., 142

S.W.3d 522, 524-25 (Tex. App.—Fort Worth 2004, no pet.); see also Buckholts ISD v. Glaser,

632 S.W.2d 146, 150 (Tex. 1982) (an appealing party cannot complain of errors that do

not injuriously affect that party or that merely affect others). Issue five is overruled.

        We affirm the trial court’s order of termination.




                                                        REX D. DAVIS
                                                        Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 12, 2013
[CV06]




In the Interest of A.Y. and P.J.T., Children                                          Page 16
