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holding father's indictment for possession of child pornography admissible as relevant to determinations under section 161.001(b)
Summary of this case from In re A.W.Opinion
NO. 02-15-00394-CV
03-31-2016
IN THE INTEREST OF J.R. AND L.R., CHILDREN
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. D2014277 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
This is an ultra-accelerated appeal in which Appellant G.R. (Father) appeals the termination of his parental rights to his children Jill and Liz. In three issues, Father argues that the trial court abused its discretion by failing to exclude irrelevant and prejudicial testimony and exhibits and that the evidence is legally and factually insufficient to support the best-interest finding. We will affirm.
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed).
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
The record demonstrates that Father's decisions and actions endangered Jill and Liz and that Jill and Liz, due to their young ages of approximately nine years and four years respectively, were unable to protect themselves from his decisions and actions. For instance, Father allowed his adult male friends to live in the family home—one of whom allegedly sexually assaulted Liz and another of whom had a history of involvement with Child Protective Services (CPS), Father was arrested for possession of child pornography while the Texas Department of Family and Protective Services (the Department) was investigating the referral regarding the alleged sexual assault of Liz by Father's friend, Father abused methamphetamine, and he did not complete the services required to obtain the return of his children. Because Father challenges the legal and factual sufficiency of the evidence to support the trial court's best-interest finding, we set forth a summary of the evidence.
B. Initial Referrals
In December 2013, when Jill and Liz were ages nine and four, the Department received two intakes from law enforcement; the first alleged that an altercation had occurred at the family's house, and the second alleged that Liz had been sexually abused by an unrelated member of the home. Liz was evaluated at Cook Children's Hospital and said that she had been touched "there" and pointed to her genital area; she identified the person who had touched her as Christopher. Dees spoke with Mother, who told Dees that she had suspicions that Liz was being sexually assaulted because Liz had touched and had tickled Mother in her "no-no spot" and because Liz had acted differently when Christopher was around. Father told Dees that he did not think it was wrong or a big deal and did not think that Christopher had sexually assaulted Liz.
The record regarding this incident is difficult to follow. Brandi Dees, a special investigator with the Department, testified that "an unrelated home member had called the child an inappropriate name." Later, Dees testified that one unrelated home member, Christopher, called a little girl belonging to the other unrelated home member, James, an inappropriate name. The little girl was described as a friend of Jill's; there is no mention of where Jill or Liz were during this incident. The Department had concerns about James living with the family because he had been involved in several prior CPS cases.
Christopher, whom Father had known in the military, lived with Mother and Father because he was homeless. Mother and Father allowed Christopher to babysit Liz as payment for his part of the rent.
Mother voluntarily relinquished her parental rights to the children prior to the termination trial and did not appeal.
After the allegation was investigated, no criminal charges were filed against Christopher.
C. Father Arrested for Possession of Child Pornography
Approximately one month into the Department's investigation of the two allegations, Father was arrested for possession of child pornography. Dees testified that Father admitted that he knew there was child pornography on his computer and that he thought it appeared on his computer in 2011 or 2012 when he was downloading some files. Father told Dees that he had last looked at child pornography on his computer in 2011 or 2012. Father said that his family and friends could access the computer at any time. Dees testified that she never saw Father display any remorse for having child pornography on his computer. Dees created a safety plan that prevented Father from being in the home with the children until he completed a sex offender assessment.
D. Third Referral and Father Violated Safety Plan
On January 13, 2014, Dees received a referral that Liz had been found at a neighbor's house and was hungry and had not been fed. Dees went to the family's house and found Father and Mother outside. Father said that he had come to the house to pick up something and that he thought he was allowed to be at the house as long as he did not make contact with Liz. Dees testified that Father had broken the safety plan because he was not supposed to have any contact with the children.
E. Fourth Referral and Case Opened for Family-Based Safety Services
On January 23, 2014, a referral to CPS was initiated by five-year-old Liz's daycare center and indicated that Liz was not potty trained and was terrified of the toilet and that Mother had smelled of marijuana when she picked up Liz from the daycare. Dees sent Mother for a urinalysis and opened a case for the family to receive Family-Based Safety Services (FBSS).
Shelly Ferguson, a supervisor for the Department's conservatorship unit, testified that the family received FBSS from February through November 2014. As part of FBSS, the family had a safety plan and was offered individual counseling, visitation, mental health assessments, and a sex offender assessment for Father. Father and Mother did not initiate services from March to July 2014.
In mid-August 2014, Mother and Father were ordered by the trial court to cooperate with services. Mother provided the Department with the name and address of the person caring for the children, but it was clear from the testimony that Mother and Father did not personally know the children's caretaker.
In late August 2014, the counselor at the elementary school that Jill and Liz attended contacted the CPS caseworker and told her that the girls' caregiver was telling people in the office that Liz was barely potty trained and was deathly afraid of the toilet, that she slept in the fetal position and seemed fearful all the time, and that both girls needed medical check-ups because they were thin.
Ferguson testified that after the trial court ordered Mother and Father to participate in services, their stability declined, and their drug use increased. Mother and Father refused to participate in a hair follicle test in October 2014 because they said that they had been drugged and that the test would be positive. When the CPS caseworker met with Mother and Father in October 2014, they agreed to an oral drug screen; both swabs came back "invalid." Mother said that she was working part-time as a waitress in Fort Worth but could not recall the name of her employer and said that she would not be working there much longer because she thought that she was being drugged there.
On October 28, 2014, CPS requested that Mother and Father submit to a urinalysis; Father tested positive for methamphetamine and amphetamines, and Mother tested positive for methamphetamine. Father said that he did not understand how he had tested positive. Father called the caseworker on October 29, 2014, and said that the testing was wrong and that he wanted to pay for a urinalysis for Mother so that she could continue to have unsupervised contact with the children. The caseworker asked Father when they had last used drugs; Father said that they had not used drugs but had only taken Sudafed and amoxicillin. The caseworker informed Father that a new safety plan was needed and that drug treatment would be required for both Mother and Father.
On November 5, 2014, the CPS caseworker requested that Mother and Father submit hair follicles that day, and Mother said that she did not want to because Father had been drugged. The hair follicle results for both Mother and Father were positive for methamphetamine and amphetamines. Father later explained that he had tested positive for methamphetamine because he had been using methamphetamine twice each month beginning in July 2014.
On November 7, 2014, Mother said that she was hungry and that they did not have food to eat. The caseworker provided Mother with a list of food pantries in the Granbury area.
On November 19, 2014, the caseworker received paperwork from Father's therapist showing that Father had attended counseling a total of two times.
F. Removal of the Children
On December 1, 2014, the Department filed its original petition for protection of a child, for conservatorship, and for termination. The affidavit attached to the petition stated that the FBSS case had been opened for a little over nine months; that Mother and Father's mental health stability had been questionable; that Mother and Father had not participated in a mental health assessment and that it was unknown whether they suffered from any mental illnesses; that Mother and Father had not initiated parenting classes or couples counseling; that they had attended a couple of individual counseling sessions but had made little to no progress; that the most recent service request for drug assessments and treatment had not been pursued by Mother or Father; that Mother and Father had not established a stable place to live in several months and were unable to provide enough food for themselves; and that it would not be in the best interest of Jill and Liz to return to their Mother and Father "at this time." The affidavit listed Father's criminal history as follows: an arrest in 1993 for theft by check for more than $750 but less than $20,000; an arrest in January 2014 for possession of child pornography; and an arrest in November 2014 for theft of property greater than $1,500 but less than $20,000.
The affidavit also stated that Mother and Father had been homeless for six months preceding the removal of the children.
G. Father's Compliance with the Service Plan
In January 2015, Father received a new service plan that required him to complete the following services: participate fully in a psychological evaluation and follow up with all recommendations; attend a twelve-step recovery program at least four times each week and provide the caseworker with verification of attendance and a relapse prevention plan; participate in and successfully complete parenting classes and demonstrate the ability to effectively parent the children during visitations; maintain contact with the caseworker; attend all permanency conferences, hearings, and visits; provide a negative hair strand drug test as ordered by the trial court in order for visits to be scheduled with the children; complete a substance-abuse assessment at Star Council, follow any recommendations, and provide the caseworker with proof of completion if treatment is recommended; submit to random drug testing; complete individual counseling; and obtain and maintain clean, appropriate housing that provides a safe environment for the children.
Janet Woodruff, who served as the CPS caseworker at the time of the trial, testified regarding Father's compliance with the service plan. Father did not start working many of his services until a month or two before the trial. Father had last provided verification to her of attending Narcotics Anonymous or Alcoholics Anonymous four times per week on September 23, 2015, which was approximately five weeks before the termination trial. Father had not provided Woodruff with the relapse prevention plan that he was ordered in his service plan to provide. Father had completed parenting classes but had not demonstrated an ability to effectively parent as required by the service plan; Father had been unable to visit his children for nine months while the case was pending due to his drug use. Woodruff testified that Father had close to a year to start the drug program that he ultimately started in October 2015; as a result, Father had not completed his substance-abuse treatment at the time of the termination trial. Father did not complete his individual counseling. Woodruff testified that Father had not undergone the ABEL (sex offender) assessment, which was required by his service plan. At the time of the termination trial, Father was living with his father and was relying on others to support him; Woodruff testified that Father had not provided evidence to the Department, which was required by his service plan, that he had an ability to maintain safe and stable housing for his children. Woodruff testified that Father had not successfully completed the services required.
Ferguson testified that Father did not have a negative hair follicle test until September 2015.
H. Additional Evidence Presented at Trial
1. Investigation Related to Father's Possession of Child Pornography
Robert Young, an investigator with the Hood County District Attorney's Office, testified that the Dallas Police Department's Internet Crimes Against Children's Task Force received a cyber tip from the National Center for Missing and Exploited Children indicating that a specific IP address at Father's residence with a specific email address linked to Father was associated with three child pornographic images that had been uploaded to the internet from that IP address. The day that Young received the information, he took Ty Bermea, a forensic investigator with the sheriff's department, with him and went to Father's house. Father provided written consent for them to search his electronic devices. Young and Bermea ran a software program called Triage on Father's phone and computer, and the Triage search flagged ten to twenty images of suspected child pornography on Father's computer. Young and Bermea then gathered up all of the electronic devices—which included multiple computers, an iPad mini, and a cell phone—and went to the District Attorney's office.
Father drove himself to the DA's office, and Young met with him there to go over the images with him to find out how they came to be on Father's computer. Young Mirandized Father before they began to talk, and Father waived his right to counsel. Young recorded the interview with Father, and the tape of the interview was admitted into evidence. During the hour-long interview, Father said that back when he was in the military, he ran a search on the internet on his computer for "teen" or "tiny" because he "was into eighteen to twenty-two-year olds." He opened the hyperlink in a separate window and saved many of the pornographic images to a file he named "only me." Father admitted knowing that there were images depicting child pornography among the pornographic images in the "only me" file on his computer but claimed that he had tried to delete the images containing child pornography because he did not agree with that; he said that the images could not be deleted, even with a program called Norton Shred. Father said that "regular" pornography is not wrong to him and admitted that he had opened the other pornographic pictures in his "only me" file and had looked at them while he masturbated. Father also admitted that he had moved the "only me" file—knowing that it contained child pornography—from one computer to various other computers over the years. Father did not deny it when Young interjected that Father's children played games on the same computer that contained the "only me" file; Father said that he thought he had protected the images by putting them in a folder. Father ultimately stated that he was not denying that child pornography was on his computer and said, "I'm guilty as far as that."
The forensic specialist interjected during the interview that there was porn on every electronic device and that the iPad mini was "chock full of porn."
During Young's testimony, four of the photographs depicting child pornography that were obtained from Father's electronic devices were admitted over objection. Young agreed that the children potentially could have accessed the images and testified that it is not safe to allow the children to be in a home where there is child pornography and that doing so would endanger the children physically and emotionally.
2. The Children's Condition
Woodruff testified that the children were in a kinship placement with Carrie and had been with her since the FBSS case. Woodruff testified that Carrie had bonded with the children and had exhibited a strong capacity for protecting them. When Liz was placed with Carrie, she was five years old and was not potty trained; Jill lied and had a lot of anger. At the time of the trial, Liz was potty trained and had no issues with using the toilet, and Jill was making all A's and one B and had stopped lying and had reduced her anger. Woodruff testified that the girls have felt safe and secure with Carrie and have been able to thrive and do well in school. Woodruff testified that Carrie was meeting all of the girls' needs and was willing to adopt them.
The record indicates that the children were placed with Carrie in May 2013, but this appears to be an error because the FBSS case was pending from February through November 2014.
3. The Department's Recommendations
Ferguson testified that Father had exposed the children to an endangering environment because something traumatic had allegedly happened to Liz in the home while Father was supposed to be protecting her. Ferguson also testified that the Department believed that Father's methamphetamine use and possession of child pornography exposed the children to an endangering environment. Ferguson stated that Father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the children because he had failed to complete his services.
Woodruff agreed that Father had used a controlled substance while his parental rights were in jeopardy, which endangered the safety and well-being of his children; by being under the influence, Father put the children at risk by not being able to properly supervise them. Woodruff testified that continued drug use after being court-ordered not to use drugs is a danger to the children. The Department requested that the trial court terminate Father's parental rights to Jill and Liz on the grounds that he had used a controlled substance in a manner that had endangered the safety of his children and that he had failed to complete his court-ordered substance-abuse treatment. Woodruff agreed that having child pornography in the house where children can access it endangers their physical and emotional well-being. Woodruff further testified that it was in Jill's and Liz's best interest for the trial court to terminate Father's parental rights to them. Woodruff said that the Department was going to consider Carrie as an adoptive placement for Jill and Liz.
I. Disposition
After hearing the above evidence, the trial court found by clear and convincing evidence that Father had knowingly placed or had knowingly allowed the children to remain in conditions and surroundings that had endangered their physical or emotional well-being, that he had engaged in conduct or had knowingly placed the children with persons who had engaged in conduct that had endangered their physical or emotional well-being, that he had failed to comply with the provisions of the court's order that had established the actions necessary for him to obtain the return of the children to him and that the children had been in the temporary managing conservatorship of the Department for not less than nine months as a result of the removal, and that he had used controlled substances in violation of the health and safety code in a manner that had endangered the health and safety of the children and had failed to complete a court-ordered substance-abuse treatment program. After also finding by clear and convincing evidence that termination of Father's parental rights to the children was in their best interest, the trial court terminated Father's parental rights to Jill and Liz. Father perfected this appeal.
III. ISSUES 1 AND 2: EVIDENTIARY CHALLENGES
In his first issue, Father argues that the trial court abused its discretion by admitting the testimony of Investigator Young over Father's relevancy objection. In his second issue, Father argues that the trial court abused its discretion by admitting the Department's Exhibits 1 and 4 (the self-authenticating, certified copy of the indictment from his arrest for possession of child pornography and a compact disc containing the recording of Young's interview with Father, respectively) over Father's relevancy objections and by admitting the Department's Exhibits 2, 3, 5, and 6 (the child pornography photos) over Father's more-prejudicial-than-probative objections.
A. Standard of Review and Law Governing Admissibility
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
Evidence is relevant if it has "any tendency to make a fact more or less probable than it would be without the evidence." Tex. R. Evid. 401(a). In a termination proceeding, the Department must prove one of the alleged statutory grounds for termination—which in this case included that Father had endangered the children's physical or emotional well-being—and that termination is in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D)-(E), (2) (West Supp. 2015). Therefore, any evidence that makes it more or less likely that Father endangered the children's physical or emotional well-being or that relates to the children's best interest is relevant. See Murray v. Tex. Dep't of Family & Protective Servs., 294 S.W.3d 360, 368 (Tex. App.—Austin 2009, no pet.).
Relevant evidence should nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Murray, 294 S.W.3d at 368. Excluding evidence under rule 403 is an extraordinary remedy that must be used sparingly. Id.
B. Analysis
Father asserts that Young's testimony was inadmissible because it was not relevant to the termination grounds alleged by the Department. Father argues that there was no evidence that his looking at child pornography would cause him to become a sexual predator of children, so Young's testimony was not relevant. But evidence that Father possessed child pornography on his computer, which Young testified had the potential to be accessed by the children, is relevant to determining whether Father endangered Jill and Liz's physical or emotional well-being and also to evaluating Jill and Liz's best interest. See In re J.L.C., No. 09-14-00466-CV, 2015 WL 575420, at *3-4 (Tex. App.—Beaumont Feb. 12, 2015, no pet.) (mem. op.) (considering father's child pornography offenses in best-interest analysis); In re C.M.T., No. 07-14-00300-CV, 2014 WL 7149263, at *3-4 (Tex. App.—Amarillo Dec. 12, 2014, no pet.) (mem. op.) (same); In re K.W., No. 02-06-00461-CV, 2008 WL 553705, at *7 (Tex. App.—Fort Worth Feb. 28, 2008) (mem. op.) (considering evidence that mother exposed children to pornography in endangering-conduct analysis), pet. denied, 260 S.W.3d 462 (Tex. 2008). See generally In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied) (stating that courts may look to parental conduct before and after child's birth to determine if termination is necessary). Consequently, we hold that the trial court did not abuse its discretion by admitting Young's testimony regarding Father's arrest for possession of child pornography, and we overrule Father's first issue. See Murray, 294 S.W.3d at 368.
Concerning the Department's Exhibits 1 and 4—Father's indictment for possession of child pornography and the recording of Father's interview with Young—this evidence is relevant to determining whether Father endangered Jill and Liz's physical or emotional well-being and also to evaluating Jill and Liz's best interest. See Murray, 294 S.W.3d at 368 (holding father's recorded phone calls from jail were relevant to evaluation of child's best interest); In re G.C.F., No. 02-06-00282-CV, 2007 WL 1018570, at *3 (Tex. App.—Fort Worth Apr. 5, 2007, no pet.) (mem. op.) (holding indictment of mother's associate was relevant to material issues in termination trial, including whether mother had endangered child and whether termination of mother's parental rights was in child's best interest). See generally R.W., 129 S.W.3d at 738. Consequently, we hold that the trial court did not abuse its discretion by admitting the Department's Exhibits 1 and 4, and we overrule this portion of Father's second issue.
To the extent that Father argues in his brief that the Department's Exhibits 1 and 4 were more prejudicial than probative, he failed to preserve his rule 403 argument by failing to raise it in the trial court. See Tex. R. App. P. 33.1(a); Retzlaff v. Tex. Dep't of Protective & Regulatory Servs., No. 03-98-00201-CV, 1999 WL 546960, at *2 (Tex. App.—Austin July 29, 1999, pet. denied) (not designated for publication) (holding that appellant waived error on appeal by failing to raise a rule 403 objection at the time photographs were offered into evidence), cert. denied, 531 U.S. 946 (2000). --------
Concerning the Department's Exhibits 2, 3, 5, and 6—images of child pornography found on Father's electronic devices—this evidence is also relevant to and probative of a determination of whether Father endangered Jill and Liz's physical or emotional well-being and of Jill and Liz's best interest. Father has not demonstrated, and the record does not show, that the admission of the probative photographs unfairly prejudiced him. See Tex. R. Evid. 403 (requiring exclusion of evidence when probative value is substantially outweighed by danger of unfair prejudice); In re K.Y., 273 S.W.3d 703, 710-12 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding autopsy photographs of child admitted during parental-rights termination trial were not more prejudicial than probative); In re L.A., No. 02-07-00236-CV, 2008 WL 2168017, at *2-3 (Tex. App.—Fort Worth May 22, 2008, no pet.) (mem. op.) (holding photographs of dildo admitted during parental-rights termination trial were not more prejudicial than probative); Retzlaff, 1999 WL 546960, at *2 (holding video of consensual act of a married couple admitted during parental-rights termination trial was not more prejudicial than probative). Any prejudice against Father is a fair prejudice stemming from the evidence's relevance to questions directly at issue in the termination—whether Father endangered the children by keeping child pornography in a file on a computer that he allowed the children to use and whether termination is in the children's best interest. See Tex. R. Evid. 403; Murray, 294 S.W.3d at 369. Consequently, we hold that the trial court did not abuse its discretion by admitting the Department's Exhibits 2, 3, 5, and 6, and we overrule the remainder of Father's second issue.
IV. CHALLENGE TO BEST-INTEREST FINDING
In his third issue, Father argues that the evidence is legally and factually insufficient to support the trial court's best-interest finding.
A. Burden of Proof and Standards of Review
Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b), § 161.206(a) (West 2014); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). "[C]onjecture is not enough." E.N.C., 384 S.W.3d at 810. Due process demands this heightened standard because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982)); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802. 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." Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the Department must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; 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 C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven. J.P.B., 180 S.W.3d at 573.
We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id. "A lack of evidence does not constitute clear and convincing evidence." E.N.C., 384 S.W.3d at 808.
We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province. J.P.B., 180 S.W.3d at 573-74. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id. at 573.
In conducting a factual sufficiency review, we are required to perform "an exacting review of the entire record" in determining whether the evidence is sufficient to support the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). 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 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 termination of the parent-child relationship would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Holley Factors
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). To analyze whether termination of the parental relationship is in the child's best interest, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative of both the subsection (1) termination ground and the best-interest determination. Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include
(A) the desires of the child;Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, "we consider, among other evidence, the Holley factors"); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some listed factors may be inapplicable to some cases. 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. That is, "[a] lack of evidence does not constitute clear and convincing evidence." E.N.C., 384 S.W.3d at 808.
(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;
(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.
C. Analysis of Holley Factors
With regard to the desires of the children, the record demonstrates that at the time of trial, Jill was eleven years old, and Liz was about to turn seven years old; the girls did not testify at the termination trial. Father was unable to visit the girls for nine months during 2015 because he did not have a negative hair follicle test, but after an October 2015 visit with Father, both girls acted out for several days. Evidence exists that the girls' caretaker had bonded with them, and no evidence exists of any emotional bond between the girls and Father. Cf. In re K.K.J., No. 02-13-00139-CV, 2013 WL 4506883, at *7 (Tex. App.—Fort Worth Aug. 22, 2013, no pet.) (mem. op.) (stating that there was little, if any, emotional bond between children and mother who had not visited children in ten months due to her incarceration). The trial court was thus entitled to find that this factor weighed in favor of termination of Father's parental rights to the children.
With regard to the emotional and physical needs of the children now and in the future, the children's basic needs included food and clothing; routine medical and dental care; and a safe and stable home. When the children came into care, five-year-old Liz was not potty trained, was deathly afraid of the toilet, slept in the fetal position, and seemed fearful all the time; Jill lied a lot, had a lot of anger, and was barely passing school; and both girls needed medical check-ups because they were thin. Evidence exists that Mother and Father did not have enough food to feed themselves. By the time of the termination trial, the girls felt safe and secure with their caretaker; Liz was potty trained; and Jill was excelling in school, had stopped lying, and had reduced her anger. Father was living with his father at the time of the termination trial and had not provided evidence to the Department, which was required by his service plan, showing that he had an ability to maintain safe and stable housing for Jill and Liz. The trial court was entitled to find that this factor weighed in favor of termination.
With regard to the emotional and physical danger to the children now and in the future, the evidence demonstrated that Father had used drugs for nine months after the children were removed and had not completed drug treatment at the time of the termination trial. Woodruff testified that if Father was under the influence, he would put the children at risk by not being able to properly supervise them. The record further demonstrates that Father had endangered the children by possessing child pornography on his electronic devices, which the children had access to; by not completing a sex offender assessment; and by allowing unsafe men to live in the family home with his daughters. The trial court was entitled to find that this factor weighed in favor of termination of Father's parental rights to the children.
With regard to Father's parental abilities, the record reveals that Father had not potty trained Liz by the time she was five years old. Woodruff testified that Father had not demonstrated an ability to effectively parent Jill and Liz during the few visits he earned after he submitted a negative hair follicle test, which was more than nine months after the Department filed for termination of his parental rights. Father failed to complete the drug treatment required by his service plan. The record also reveals that Father had allowed unsafe men—one of whom had allegedly sexually assaulted Liz and another of whom had prior CPS history—to live in the family home with his daughters; when Father was informed of the allegations that Christopher had sexually assaulted Liz, Father told Dees that he did not think it was wrong or a big deal. Moreover, Father allowed the children access to his electronic devices, which he knew contained pornography and child pornography, and failed to complete a sex offender assessment. The trial court was entitled to find that this factor weighed in favor of termination of Father's parental rights to the children.
With regard to the programs available to assist Father, Father failed to take advantage of the FBSS services and the court-ordered CPS services that he was offered. The trial court was entitled to find that this factor weighed in favor of termination of Father's parental rights to the children.
With regard to the plans for the children by the individual seeking custody and the stability of the home or proposed placement, Father's plans for the children are not apparent from the record. Father had failed to provide the Department with evidence of the stability of his home. The caregiver caring for the girls through the kinship placement for almost a year prior to the trial wanted to adopt the children and had demonstrated that she could provide a home where the children felt safe. The trial court was entitled to find that these factors weighed slightly in favor of termination of Father's parental rights to the children. See E.N.C., 384 S.W.3d at 808.
With regard to the acts or omissions of Father that may indicate the existing parent-child relationship is not a proper one, the analysis set forth above—which details Father's willingness to expose his children to unsafe men, Father's methamphetamine use, Father's failure to complete his service plan and drug treatment, and Father's possession of child pornography—reveals that the existing parent-child relationship between Father and the children is not a proper parent-child relationship. The trial court was entitled to find that this factor weighed in favor of termination of Father's parental rights to the children.
As for any excuse for the acts or omissions of the parent, several times when the Department requested that Father submit to drug testing, the excuse given for not wanting to submit to the test, or for a positive test if he did submit, was that he had been drugged. In his appellate brief, without providing any citations to the record, Father argues that he encountered problems in completing his service plan due to the turnover in caseworkers, to living with his father in the Houston area, and to the delay in receiving the necessary vouchers for his services. The trial court was entitled to find that this factor weighed in favor of termination of Father's parental rights to the children.
Viewing all the evidence in the light most favorable to the best-interest finding and considering the nonexclusive Holley factors, we hold that the trial court could have reasonably formed a firm conviction or belief that termination of the parent-child relationship between Father and the children was in the children's best interest, and we therefore hold the evidence legally sufficient to support the trial court's best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston 2010, pet. denied) (holding evidence legally sufficient to support the trial court's finding that termination of mother's parental rights was in child's best interest when most of the best-interest factors weighed in favor of termination); see also In re T.R.M., No. 14-14-00773-CV, 2015 WL 1062171, at *11-12 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court's best-interest finding based on mother's lack of a safe, stable home environment; noncompliance with services; and drug use); C.M.T., 2014 WL 7149263, at *3-4 (holding evidence legally sufficient to support trial court's best-interest finding based on father's failure to visit or maintain contact with child, father's conviction for possession of child pornography, and evidence that father had failed to comply with service plan and exposed child to endangering environment).
Similarly, reviewing all the evidence with appropriate deference to the factfinder, we hold that the trial court could have reasonably formed a firm conviction or belief that termination of the parent-child relationship between Father and the children was in the children's best interest, and we therefore hold that the evidence is factually sufficient to support the trial court's best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); Jordan, 325 S.W.3d at 733; In re S.B., 207 S.W.3d 887, 887-88 (Tex. App.—Fort Worth 2006, no pet.) ("A parent's drug use, inability to provide a stable home, and failure to comply with [a] family service plan support a finding that termination is in the best interest of the child."); see also C.M.T., 2014 WL 7149263, at *3-4.
We overrule Father's third issue.
V. CONCLUSION
Having overruled Father's three issues, we affirm the trial court's judgment terminating the parent-child relationship between Father and Jill and Liz.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ. DELIVERED: March 31, 2016