In the Interest of G.M.S. and G.W.S.-S. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00207-CV
________________

IN THE INTEREST OF G.M.S. AND G.W.S.-S.

________________________________________________________________________

On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 19-02-02682-CV
________________________________________________________________________

MEMORANDUM OPINION

Father appeals the termination of his parental rights to his two children, Gina

and Greg. 1, 2 See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (2). In two

issues on appeal, Father challenges the predicate findings under section

161.001(b)(1), and argues the termination is not in the best interest of his children.

Id. We affirm.

1 Mother’s parental rights were not terminated.
2 In parental rights termination cases, to protect the identity of the minors, we

refer to the children and their family members by a pseudonym. See Tex. R. App. P.
9.8(b)(2).
1
Background

A. Procedural History

This case has a long procedural history with the Texas Department of Family

and Protective Services (“the Department”) and in private modifications between

Mother, Father and third parties. After Gina was born in 2017, the Department filed

an Original Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship.3 In its Affidavit of

Removal, the Department alleged neglectful supervision by Mother, illegal drug use

by both Mother and Father, domestic violence between Mother and Father, and

allegations of inappropriate sexual behavior and abuse by Father against the

children. The trial court granted the removal and awarded conservatorship of the

children to the Department. In 2019, by motion of the Department, Gina’s case was

severed from the original petition. The non-parent care-givers filed an intervention

seeking conservatorship. The parties, including non-parent intervenors, entered into

a mediated settlement agreement in January 2019. In February 2019, the trial court

signed a Final Order in Suit Affecting the Parent Child Relationship as to Gina, in

accordance with the mediated settlement agreement, naming the nonparent

3 This petition included Mother’s other child and Gina’s half sibling who is

not a part of this suit or appeal.
2
intervenors as joint managing conservators with the right to designate the primary

residence of Gina, and giving possessory rights to Mother and Father.

In March 2019, August 2019, September 2019, November 2019, January

2020, February 2020, June 2020, and August 2020 Father filed petitions to modify

the parent-child relationship, all of which were denied by the trial court, except for

the August 2020 motion. 4

In 2019, Mother gave birth to Greg and the parties entered a final order

naming both parties joint managing conservators, with Father as the parent with the

ability to designate Greg’s primary residence. In April 2021, the trial court granted

an Order to Modify the Parent-Child Relationship, naming both parties joint

managing conservators, with Father as the parent with the right to designate Gina’s

primary residence. Greg’s case was consolidated into Gina’s cause number.

In May 2022, the Department filed a Petition to Modify, for Conservatorship,

and for Termination in Suit Affecting the Parent-Child Relationship, the initial

pleading for the case before our Court today. In its affidavit for removal, the

Department alleged that in May 2022, Gina reported sexual abuse to a professional.

According to the affidavit, Gina stated her father “rubs her tutu a lot[,]” she has

exhibited increased behavioral problems at school, and she has displayed avoidance

behaviors when in the presence of Father, including “hiding and not wanting to go

4 Father filed these motions first with counsel and then pro se.

3
home.” Subsequently, the trial court ordered both children to be removed from

Father and placed with the Department, naming the Department as temporary

managing conservator of the children. In that same month, Mother answered the

Department’s motion and concurrently filed two motions to modify the parent child

relationship as to Greg and Gina, alleging Father engaged in a history or pattern of

family violence, child abuse and child neglect.

On June 15, 2022, the trial court signed agreed temporary orders regarding

Greg and Gina, naming Mother sole managing conservator with the right to

designate the children’s primary residence and giving Father possessory conservator

rights, but denying visitation with the children until a therapist recommends it. The

Department’s Petition for each child was dismissed, but in December 2022, the

Department filed a new Petition in Intervention and for Protection, to Modify, for

Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship with respect to Greg and Gina, alleging Mother engaged in a physical

altercation with her paramour, including threating his life with a gun, physically

attacking her oldest child, neglectful supervision, and physical abuse and neglect of

all her children including Gina and Greg. 5 The trial court then signed an order

removing the children from Mother’s possession and naming the Department sole

managing conservator of the children. In May 2024, after extensive motion practice

5 Mother’s two oldest children are not a part of this appeal.

4
between the parties, a jury trial was held, and the jury found termination of Father’s

parental rights is in the best interest of the children.

B. The Trial

Genevieve Forey-Juarez

Genevieve Forey-Juarez testified she was Gina’s preschool teacher for the

2021-2022 school year. She described Gina as a “good student” noting that she was

“happy, well-behaved, [and] participated very well in class.” Towards the end of the

school year, Gina’s behavior changed. Forey-Juarez explained that Gina started

throwing tantrums in class, at lunch, and after school, being defiant, and not wanting

to leave at dismissal, something she had never done before. Forey-Juarez testified

regarding the following interaction with Gina on May 4, 2022:

A. We were in class doing -- I was with a group of students. [Gina] was
-- should have been in her pre-K center but she was just not wanting to
be there. She was coming up to me instead.

Q. So before you saw the behavior changes, was she -- would she have
always stayed in her section where she was supposed to be?

A. Yeah. She typically did, yes.

Q. So when these behaviors changed, you saw that change as well; is
that right?

A. Yes.

Q. Okay. And so what did -- what did [Gina] do while you were in
another section with some other students?

5
A. She told me that she didn’t like when her dad touched her tutu. And
that he always touched her tutu.

Q. All right. And did that concern you?

A. It did. I had never heard her say or anybody say anything like that
before.

Q. All right. And did she make any movements with her arms or legs
or any part of her body to tell you about that?

A. She gestured to her private area between her legs.

Q. All right. And when did she gesture that way? Was it -- at what part
of her telling you that?

A. When she said that she didn’t like when her dad touched her tutu.

Q. Okay. And what did you do after that happened?

A. I don’t know what I immediately did; but I know as soon as I could,
I went to go call the counselor and report it.

Forey-Juarez recalled that later that day Gina did not want to get on her school bus

to go home.

Victoria Lincoln

Victoria Lincoln testified that she was the assistant principal at Gina’s school

on the day she made the outcry to her teacher. Before Gina’s outcry, she described

her visits with Gina as “happy[,]” and “not for a discipline-type issue.” But noted

that Gina had “excessive [non] attendance[,]” agreeing that she missed 66 days that

school year. She explained that most of the absences were unexcused and that it was

unusual that Gina had so many doctors in Beaumont.
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On May 4th, Gina’s teacher brought her to Lincoln’s office because Gina was

refusing to eat lunch. She said that while Gina was in her office, Lincoln observed

Gina “putting her hands on her private parts[.]” She asked Gina if she needed to go

to the bathroom and Gina said no. Gina then returned to her classroom. Later that

day at dismissal, Gina refused to get on the bus. According to Lincoln, Gina was

“crying, screaming[,] [and] [s]he threw herself on the ground…refusing to get up

and go to the bus at all.” She picked up Gina, held her, and took her to her office to

call her parent. She started to calm down once she was in Lincoln’s office. Father

then came to the school to pick up Gina. Lincoln testified that Gina’s demeanor

changed as soon as Father arrived at the school. She recalled that Gina was crying

and that “[s]he crawled…underneath the chair and [her father] had to pull her out

from underneath the chair.” After Father pulled Gina out from underneath the chair,

he took her down the hallway, and Gina was “crying and screaming…reaching her

hands over the hallway at me.” She testified that in all her years of teaching she had

never observed a child acting like this. Lincoln then spoke to the Department and a

police investigator about this issue.

Mandy Teal

Mandy Teal testified she has been an investigator with the Department for

almost eight years. Teal stated that on May 4, 2022, the Department was notified

about allegations of “[s]exual abuse of [Gina] by her father[.]” After learning of the

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allegations, she reviewed the parent’s history with the Department, the parent’s

criminal history, and filed for removal. Once the Department received the trial

court’s order to remove the children, the Department located the children and

removed them on May 9th. According to Teal, she did not interview Father regarding

the allegations.

Hilda Pernell

Hilda Pernell testified she is the Department supervisor on this case and has

been since the beginning. According to Pernell, there is currently an agreement with

the Department and Mother that the Foster Parents will have permanent managing

conservatorship of the children and Mother will have possessory rights, including

supervised visitations. The Foster Parents are Mother’s former in-laws and the

children have been with the Foster Parents since September 2023. She testified both

children are having their needs met by the Foster Parents’ care, and the Department

would have no concerns if Foster Parents were named conservators. According to

Pernell, because of the allegations against Father, regardless of what services Father

may complete, the Department would not feel it would be safe to return the children

to Father. Based on the allegations and comments from Gina, Pernell believed it

would be in the best interest of the children to terminate Father’s parental rights.

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Javier Vencigonzalez

Javier Vencigonzalez testified he has been the Department conservatorship

caseworker on this case since April, 2024. He testified he is familiar with the current

placement of the children, it is an appropriate home, and the Department has no

concerns with the placement. Gina and Greg’s half-brother is also in the home.

According to Vencigonzalez, both children have special needs and are receiving

appropriate therapies, medications, and care to address their needs. Vencigonzalez

testified the Foster Parents have had financial difficulties in the past, but those issues

are resolved, and he believes it is the best place for the children. According to

Vencigonzalez, the Department would have concerns if Father’s rights were not

terminated, explaining “especially [Gina] and to a certain extent [Greg], the trauma

that they’re undergoing might even get worse and there’s a safety concern as well.”

He testified he believes Father’s parental rights should be terminated.

Mary Phillips

Mary Phillips testified she is currently employed as a victim assistance

coordinator with the Montgomery County District Attorney’s Office. Before that,

she was a forensic interviewer at Children’s Safe Harbor with the Montgomery

County Child Advocacy Center located in Conroe. She described her training and

experience, explaining that she interviewed Gina two times, with the first interview

conducted on May 10, 2022. After the first interview, she noted Gina went to the

9
bathroom on herself and needed a change of clothes. She described Gina’s demeanor

during the second interview as a tentative disclosure, explaining that children “could

be tentative, there could be different barriers to a disclosure and different things

going on.”

Ashley Gonzalez

Ashely Gonzalez testified she is currently a forensic interviewer with

Children’s Safe Harbor. She detailed her educational and professional background,

including her training to become a forensic interviewer. She testified she interviewed

Gina in February 2023, and she has concerns that Gina was sexually abused because

she made an outcry during the interview. A copy of the forensic interview was

admitted into evidence and published to the jury.

Linda Fiato

Linda Fiato testified she is a Court-Appointed Special Advocate for Gina and

Greg. She explained she contacts the children monthly either at their placement or

at school. She has access to their educational and medical records and interacts with

guardians and providers to “check on their welfare and status.” Fiato testified she

provides monthly progress reports to the Department indicating how the parties are

doing and whether any concerns have come to light. She interacts with the parents

either in person or via phone or text, “to help them in any way that I can to

accomplish their goals and objectives in the case plan.”

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Fiato testified she has been Gina and Greg’s guardian ad litem since March

2023. According to Fiato, Gina is “doing well in her placement[,]” and her needs are

being met, but Fiato also noted some behaviors related to trauma, in her opinion. She

stated Greg is “thriving[,]” and he is making progress behaviorally, including

becoming more verbal, interacting and socializing.

Fiato testified she believes it is in Gina’s best interest for Father’s parental

rights to be terminated because she believes Father will abuse Gina and “that he

presents an ongoing safety threat[.]” She also believes Father’s rights should be

terminated with respect to Greg because he has limited verbal skills and “is at risk

for abuse from Father and unable to speak up on his own behalf about anything that

might happen.” After searching Father’s familial contacts including his mother, ex-

wife and her child, Fiato expressed concerns Father has a “history of molesting” and

would sexually abuse his children. During cross-examination, Fiato agreed that some

allegations against Father were administratively closed but also agreed from a CASA

standpoint that no matter what services or programs Father completed, it would not

change her mind that he should not have the children returned to his possession.

John Tones

John Tones testified he is a detective with the City of Conroe, Criminal

Investigations Division. He described his educational and professional background

and testified he was assigned to investigate this case after Gina’s outcry that Father

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touched her “tutu[.]” Detective Tones testified the investigation against Father was

opened and closed two times before the current investigation, and criminal charges

were filed against Father. The first investigation was closed because there was not

an outcry statement made during the forensic interview. According to Tones, one of

Gina’s siblings later made an outcry during a forensic interview, leading to the

current charges filed against Father. Father was then charged with Aggravated

Sexual Assault of a Child, a first-degree felony.

Father

At trial, Father testified he is currently incarcerated in the Montgomery

County Jail awaiting trial on the sexual abuse allegations against Gina. He detailed

the procedural history of this case and stated he was named managing conservator

of the children with the right to designate their primary residence in 2021. Copies of

Gina’s school records were admitted at trial, showing Gina was absent from school

several times when she lived with Father. Father explained the absences as being for

“COVID-related symptoms.” The records show Gina would go to the doctor in

Beaumont when she was sick, not locally in Conroe, and Father explained he chose

Beaumont because it was closer to Mother. “[Mother] was living in Tarkington,

which was about an hour from Beaumont because that was my plans to move out

there to be on the other side of Mother.” Father testified he tried to get into a doctor

locally after her other pediatrician stopped seeing patients, but he did not “know how

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to work the computer system.” Father denied taking the children to doctor’s

appointments in Beaumont to receive gas mileage reimbursement from Medicare or

Medicaid.

On May 4, 2022, Father received a phone call from Gina’s school that Gina

did not want to take the school bus home. When Father got to the school, Gina was

in the school office and he said she was “fussy, like trying to sit down, like she did

not want to come up to me and I did not know what the purpose of that was at the

time.” He testified Gina kept her head down the entire time and did not want to talk

to him. Father said that was the first time he had ever seen Gina act like that. On

May 9th, the Department removed Gina and Greg from Father’s care. Father testified

he had not had any contact with Gina or Greg for over two years. Father admitted he

was molested as a child. Father denied Gina has ever seen his private parts. He

denied ever bathing with his children or asking them to keep a secret. Father invoked

his fifth amendment right regarding any questions about the sexual abuse allegations

against Gina.

Mother

Mother testified she has four children, including Gina and Greg. Three of her

children currently live with their Foster Mother. Mother detailed her mental health

history and confirmed Gina and Greg were removed from her care in December 2022

after she was arrested following a fight with her boyfriend. Mother then described

13
her relationship with Father, testifying that in 2017 right before Gina was first

removed from her care as a toddler, she had concerns Father was using cocaine.

Mother described her relationship with Father as “[v]ery rocky, very chaotic[,]”

noting that Father lied to her about his employment on “day one[,]” testifying “I feel

like our whole relationship was based off of one lie from day one.” Mother stated

there was “a lot” of physical abuse, including times that the police were called. She

recalled two instances of domestic violence from Father early in their relationship.

According to Mother, if she denied Father sexual intercourse, he would “freeze me

out of…his apartment[,]” or turn down the thermostat to make her uncomfortable,

and she described his actions as “a game he liked to play.” Mother recalled one time

when she wanted to sleep on the couch to be more comfortable and Father smeared

feces on her face. She would also wake up to Father standing over her and

masturbating. Eventually she moved to a different unit in the same apartment

complex and found out she was pregnant with Gina, but admitted she continued to

have a relationship with Father and subsequently conceived Greg.

Mother testified that Father’s rights as to Gina should be terminated because

“I believe my daughter. I have dealt with a lot of trauma and very long healing

process that we’re still in. I don’t think that he’s a safe dad.” She also expressed

concern about Father’s parental rights with respect to Greg, explaining “[Greg] has

a speech impairment, which cause -- makes it really, really hard to understand

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anything that he says. You just have to really pay attention and spend a lot of time

with him to be able to understand it. I even have a hard time with it. So if there was

any sexual abuse at all, he wouldn’t be able to speak up for himself.” Mother spoke

about Father’s childhood, testifying that “he went to a boys’ group home for, I guess,

being inappropriate with other children either his age or a little bit younger than him,

around age 13[,]” and that she had concerns that Father sexually assaulted another

child when he was a child. Mother stated that Father did not have a good relationship

with his own mother and that he was molested when he was a teenager. Mother stated

she reported Father to the Department when Gina was a baby because of his behavior

towards her when he would change her diapers.

It was like in an hour-long setting, he would change her diaper five
times in one hour. That was very consistent. Anytime he would come
to visit, that’s all he would want to do is just take her diaper off and
every time the line would change colors on her pamper. And it always
made me feel like he was looking at my baby inappropriately, and that’s
what I reported in 2017 in that CPS case when I called.

According to Mother, Gina had many absences from school while in Father’s care,

but she denied being aware of the absences because she had visitation with the

children only on weekends. Mother testified Father took the children to doctors in

Beaumont so he could get “gas mileage reimbursement.” She claimed Father used

this time when he was close to the Texas/Louisiana state line to “go back and forth

to the casino.” Mother testified that when Gina was removed from Father, he made

a missing poster for her stating Gina was kidnapped. She admitted during cross-
15
examination that in 2021, she agreed for Father to be named Joint Managing

Conservator and to have a standard possession order. She described the Foster

Parents’ care of Gina and Greg as “beyond measure.”

Foster Mother

Foster Mother testified that her son was married to Mother before he passed

away, and that she has kept in contact with Mother. The children were placed with

her in October 2023. As of the time of trial, the children had lived with her for several

months. She testified her household has seven people, herself, her husband, her 24-

year-old daughter, her granddaughter, Gina, Greg, and Gina’s and Greg’s older

sibling. Gina and her granddaughter share a room, and Greg and his older half-

brother share a room.

According to Foster Mother, Greg is in a Pre-K early education program. She

testified Greg has special needs and is autistic, but he is receiving speech and

occupational therapy and is “doing better.” Foster Mother testified Gina has an

intellectual disability, oppositional defiance disorder, attends therapy, and takes

medication to help with her issues. She described Gina’s sleep issues, stating “it’s

hard for her to fall asleep at night. We’re not really sure why, just that she has to

take a medication to help her fall asleep. Sometimes she gets up in the middle of the

night and wanders around, but she goes back to bed.” As for her oppositional

defiance disorder, Gina “doesn’t do what she’s asked to do, and she knows she’s not

16
supposed to do it[,] [b]ut her impulses tell her that she’s…can do it.” Foster Mother

testified that she had observed Gina touching herself, and that she did it in front of

other people, but the instances have stopped in recent months. Gina did have some

toilet issues when she arrived but they have since been resolved. Foster Mother

testified Gina does not like to be hugged or touched and has “boundary issue[s].”

Foster Mother testified that although she does not work outside the home and

her husband does not work, they do not have any financial issues. Her income is

currently from the children’s disability checks and from her job at home, which is

taking care of her mother. She testified she loves the children and is bonded to them.

Her wish is for the children to remain in her home.

Forensic Interview Videos

At trial, three videos of Gina’s forensic interviews at Children’s Safe Harbor

were admitted and played for the jury. In an interview dated February 13, 2023, Gina

identified herself and her birthday. She identified the difference between a truth and

a lie. Gina stated Father “touched her private at his house[.]” She identified her

private as where she goes to the bathroom. She told the forensic interviewer Father

used his hand to touch her private and gestured towards her vaginal area. In a second

video recorded on the same day, Gina said Father touched the inside of her private

part with his hand while she was taking a bath.

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C. Jury Findings, Trial Court’s Order, and Father’s Appeal

At the conclusion of the evidence, the trial court submitted four questions to

the jury, an affirmative answer to each of which required clear and convincing

evidence. Question one asked the jury whether Father had knowingly placed each

child or allowed each child to remain in conditions or surroundings which

endangered their physical or emotional well-being. Question two asked the jury

whether Father had engaged in conduct or knowingly placed each child with persons

who engaged in conduct which endangered their physical or emotional well-being.

Question three asked the jury whether Father had constructively abandoned the

children. Lastly, question four asked the jury whether termination of Father’s

relationship with each of the children is in the best interest of each child. A

unanimous jury answered each of the four questions “Yes.”

Based on the jury’s findings, the trial court signed an order terminating

Father’s parent-child relationship with Gina and Gregg. Father timely filed this

appeal. In his first issue, Father challenges the legal and factual sufficiency for each

of the jury’s first three findings regarding endangerment and abandonment. In his

second issue, Father challenges the legal and factual sufficiency for the jury’s fourth

finding regarding the best interest of the children.

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Standard of Review

It is well established that in order to terminate a parent-child relationship, the

Department must prove by clear and convincing evidence that the parent engaged in

one or more of the acts or omissions set forth in Texas Family Code subsection

161.001(b)(1). See Tex. Fam. Code Ann. § 161.001(b); In the Interest of E.N.C., 384

S.W.3d 796, 802 (Tex. 2012) (citing In the Interest of J.F.C., 96 S.W.3d 256, 263

(Tex. 2002)); see also In the Interest of N.G., 577 S.W.3d 230, 235 (Tex. 2019)

(citations omitted). “Due process compels this heightened standard because

terminating the parent-child relationship imposes permanent, irrevocable

consequences.” In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citations

omitted). The Texas Family Code defines “clear and convincing evidence” as “the

measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations sought to be established.” Tex.

Fam. Code Ann. § 101.007. Because due process also entitles a parent to a

meaningful appeal, we apply a heightened standard of review in a parental-rights

termination case. See In the Interest of N.G., 577 S.W.3d at 235. The Texas Supreme

Court has instructed:

In a legal sufficiency review, a court should look at all the evidence in
the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction
that its finding was true. To give appropriate deference to the
factfinder’s conclusions and the role of a court conducting a legal
sufficiency review, looking at the evidence in the light most favorable
19
to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that a
court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could
skew the analysis of whether there is clear and convincing evidence.

In the Interest of J.F.C., 96 S.W.3d at 266 (emphasis in original); see also In the

Interest of E.N.C., 384 S.W.3d at 802. The evidence is legally insufficient if no

reasonable factfinder could have formed a firm belief or conviction of the truth of

the matter the Department sought to prove. In the Interest of J.F.C., 96 S.W.3d at

266.

If the evidence is legally sufficient, the appellate court then reviews the factual

sufficiency of the evidence. Id. In a factual sufficiency review, we “must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing.” Id. We are required to determine “whether the evidence is such

that a factfinder could reasonably form a firm belief or conviction about the truth of

the [Department’s] allegations.” In the Interest of C.H., 89 S.W.3d 17, 25 (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, then the

evidence is factually insufficient.” In the Interest of J.F.C., 96 S.W.3d at 266. We

must not substitute our judgment for that of the jury; rather, because the jury is the
20
sole judge of the credibility of the witnesses and the weight to be given to their

testimony, we must give deference to the jury’s findings. In the Interest of H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006); In the Interest of J.L., 163 S.W.3d 79, 86-87 (Tex.

2005).

Analysis

1. Endangerment Findings

When, as in this case, the trial court’s termination order is based on an

affirmative finding that termination is in the child’s best interest combined with

affirmative findings of multiple predicates under section 161.001(b)(1), we may

affirm if a single predicate finding is supported by sufficient evidence. See In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003) (applying previous version of the statute). In

addition to challenging the sufficiency of the jury’s finding that termination is in the

children’s best interest, Father challenges the sufficiency of each of the predicate

findings under subsections 161.001(b)(1)(D), (E) and (N). Because “the collateral

consequences of terminating parental rights under section 161.001(b)(1)(D) or (E)

are significant[,]” we first consider whether the evidence is sufficient to support

those findings before considering the sufficiency of the other findings. In the Interest

of N.G., 577 S.W.3d at 234. If the evidence is sufficient to support one of these

grounds, it is not necessary to address the sufficiency of the jury’s constructive

abandonment finding based on subsection 161.001(b)(1)(N). See id. at 232-33.

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“Because evidence of grounds D and E is often interrelated, we may consolidate our

review of the evidence supporting these grounds.” In the Interest of E.M., No. 09-

21-00317-CV, 2022 Tex. App. LEXIS 2245, at *16 (Tex. App.—Beaumont Apr. 7,

2022, no pet.) (mem. op.).

Subsection D allows a court to terminate a parent’s rights when the factfinder

finds by clear and convincing evidence that the parent “knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endanger

the physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §

161.001(b)(1)(D). Under subsection E, a parent’s rights may be terminated if clear

and convincing evidence establishes the parent “engaged in conduct or knowingly

placed the child with persons who engaged in conduct which endangers the physical

or emotional well-being of the child[.]” Id. § 161.001(b)(1)(E). The statute does not

define “endanger” but the Texas Supreme Court has explained that “‘endanger’

means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citation omitted). To endanger a child, “it

is not necessary that the conduct be directed at the child or that the child actually

suffers injury.” Id.

“Subsection D requires the endangerment to the child to be a direct result of

the child’s environment.” See In the Interest of J.H., No. 09-20-00056-CV, 2020

Tex. App. LEXIS 6189, at *34 (Tex. App.—Beaumont Aug. 6, 2020, no pet.) (mem.

22
op.) (citation omitted). “Endangerment under subsection (D) arises from a child’s

environment and a parent’s disregard for the potential for danger created by the

environment.” In re I.V.H., No. 01-19-00281-CV, 2019 Tex. App. LEXIS 8659, at

*14 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, pet. denied) (mem. op.)

(citation omitted). Termination under subsection D may be based on a single act or

omission. In the Interest of A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,

pet. denied). Termination under subsection E “requires more than a single act and

must show a conscious course of conduct.” In the Interest of C.M.C., 554 S.W.3d

164, 172 (Tex. Crim. App. 2018). When examining endangerment under subsection

D, we consider the child’s environment before the Department obtained custody. See

In the Interest of J.L.V., 2020 Tex. App. LEXIS 2070, at *34. When examining

endangerment under subsection E, we may consider actions before and after a child’s

birth to establish a “course of conduct.” In the Interest of C.M.C., 554 S.W.3d at

172.

“Sexual abuse is conduct that endangers a child’s physical or emotional well-

being.” In re K.A.R., No. 04-17-00723-CV, 2018 Tex. App. LEXIS 2548, at *9 (Tex.

App.—San Antonio Apr. 11, 2018, pet. denied) (mem. op.). It is not necessary for

the Department to establish sexual assault, nor that the parent was criminally charged

or convicted. In the Interest of B.S.C.F., No. 01-18-00907-CV, 2019 Tex. App.

LEXIS 2128, at *18 (Tex. App.—Houston [1st Dist.] Mar. 19, 2019, pet. denied)

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(mem. op.). Additionally, evidence of sexual abuse of other children, is relevant in

determining endangerment grounds. In re K.A.R., 2018 Tex. App. LEXIS 2548, at

*9; see also In the Interest of L.J.H., No. 05-21-00183-CV, 2021 Tex. App. LEXIS

7719, at *34 (Tex. App.—Dallas Sept. 20, 2021, no pet.) (mem. op.) “([P]redatory

or harmful conduct directed at one child will support termination of parental rights

as to a different child, because all children at risk for the same conduct by the same

predator are endangered.”).

The Department presented evidence that Gina made a sexual abuse outcry at

school and again in a forensic interview that Father “always touched her ‘tutu,’” that

she gestured to the area between her legs while saying “tutu,” and that she did not

like it when he touched her “tutu.” Father testified Mother told him that “tutu” is

how she referred to Gina’s private area. Gina’s teacher described changes in Gina’s

behavior towards the end of the school year leading up to the outcry statement on

May 4, 2022. The jury heard testimony from the vice principal of Gina’s school that

Gina showed a fear of Father after her outcry and resisted going home with him,

screaming as he carried her out of the school. Father testified he was incarcerated at

the time of trial awaiting a criminal trial for aggravated sexual assault of Gina based

on allegations he caused his hand to penetrate Gina’s sexual organ. When questioned

about these allegations, he invoked the 5th Amendment, and the trial court instructed

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the jury that although it was not required to do so, it was permitted to infer that

Father’s answers would have been adverse to Father.

The jury heard the caseworker testify that the Department terminated Father’s

visitation based on safety concerns “[b]ecause of the outcries.” The jury also heard

the caseworker’s supervisor testify that although Father had completed many

services on the family service plan, in her opinion, there were no services he could

complete that would make the Department feel safe in returning the children to him.

A forensic interviewer with Children’s Safe Harbor told the jury she followed all the

protocols for conducting forensic interviews and Gina made an outcry during her

interview. The jury then watched a recording of the interview, during which Gina

gestured towards her vaginal area and told the forensic interviewer Father touched

the inside of her private part with his hand while she was taking a bath. Foster Mother

testified Gina displayed sexually inappropriate behavior when she entered her home.

Mother and the guardian ad litem both expressed concerns about Greg’s returning to

Father because he is nonverbal and cannot speak up to protect himself or report

inappropriate behavior.

Viewing the evidence in the light most favorable to the jury’s findings, it

cannot be said that no reasonable factfinder could have formed a firm belief or

conviction of the truth of the matters the Department sought to prove. See In the

Interest of J.F.C., 96 S.W.3d at 266. Gina’s outcry statement alone is sufficient to

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support the jury’s findings. See In the Interest of M.H., No. 05-22-00017-CV, 2022

Tex. App. LEXIS 5631, at *16 (Tex. App.—Dallas Aug. 5, 2022, no pet.) (mem.

op.) (citation omitted) (“[O]utcry testimony alone is sufficient to support conviction

beyond a reasonable doubt. Accordingly, the trial court could have formed a firm

belief or conviction that Father knowingly allowed [the children] to remain in

conditions that endangered their physical or emotional well-being and that he

engaged in a course of conduct that endangered them.”); In the Interest of S.M.T.,

No. 13-17-00064-CV, 2017 Tex. App LEXIS 6795, at *8 (Tex. App.—Corpus

Christi July 20, 2017, pet. denied) (a jury is entitled to believe the child’s outcry of

sexual abuse as told by a witness from the Department and her counselors and

disbelieve Father’s controverting evidence). “[I]t is beyond questionable that sexual

abuse is conduct that endangers a child’s physical or emotional well-being.” In the

Interest of R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied)

(citation omitted). Additionally, “if a parent abuses a child, that conduct can support

an endangerment finding as to another child.” In the Interest of D.R., No. 02-23-

00093-CV, 2023 Tex. App. LEXIS 7223, at *40 (Tex. App.—Fort Worth Sept. 14,

2023, pet. denied) (mem. op.)

The evidence is, therefore, legally sufficient to enable the jury to find Father

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

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

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Fam. Code Ann. § 161.001(b)(1)(D). The evidence is also legally sufficient to enable

the jury to find Father engaged in a voluntary, deliberate, and conscious course of

conduct endangering the physical or emotional well-being of the children. See id. §

161.001(b)(1)(E).

Father argues, “The testimony about [Father] sexually abusing one of his

children came almost exclusively from the Safe Harbor videos.” Father asserts the

timing of outcry statements always came just before court dates. Father also lists

several other grounds upon which a factfinder could question the credibility or

reliability of the outcry statements, including but not limited to:

[T]he child never acknowledged the difference between a truth and a
lie, stated that people were wearing invisible jewelry, stated the door
opened by itself when the video clearly shows she opened it. The
interviewer constantly led the child by giving her options. The child
refused to answer continuously asking for the interviewer to play with
her. The child finally start[s] answering only after the interviewer
promised to play with her. The child always takes the last option over
and over in order to get the interviewer to play with her. Even when the
child does answer, the sexual assault that she describes in not credible
as it would not be physically possible. G.S. stated in his interview he
heard his mom talking about it and his mom told him things. The same
mom who was not forthcoming about the assault she perpetrated that
led to the last removal.

Father also emphasizes the Department dismissed its case in May 2022 when

law enforcement closed its case, administratively closed its December 2022 cases,

and was uncertain of the grounds upon which the Department sought to terminate

Father’s rights. Father argues that in light of his challenges to the credibility of the

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Department’s evidence, “no one could find the statements made by the child to be

clear and convincing.” We disagree. The Texas Supreme Court has explained:

“[A] core function of the jury under any standard of proof—including
clear and convincing evidence—is to resolve conflicts in testimony,
weigh evidence, and draw reasonable inferences from basic facts to
ultimate facts. In doing so, juries may consider circumstantial evidence,
weigh witness credibility, and draw reasonable inferences from the
evidence they choose to believe. A reviewing court may not substitute
its judgment for that of the jury.”

In the Interest of C.E., 687 S.W.3d 304, 308-09 (Tex. 2024) (citations omitted). As

a reviewing court, we are required to determine whether the evidence is sufficient to

enable a factfinder reasonably to form a firm belief or conviction concerning the

truth of the Department’s allegations. See In the Interest of C.H., 89 S.W.3d at 25.

“But the court of appeals’ authority to conduct a factual sufficiency analysis does

not permit the court to stand in the role of a thirteenth juror.” In the Interest of A.B.,

437 S.W.3d 498, 507 (Tex. 2014). Rather, our responsibility is to consider the entire

record and determine whether the disputed evidence the jury could not reasonably

have credited in favor of its endangerment findings is so significant that the jury

could not reasonably have formed a firm belief or conviction that Father endangered

the children as described in subsections 161.001(b)(1)(D) and (E). See In the Interest

of J.F.C., 96 S.W.3d at 266. Having reviewed the entire record under this standard,

we conclude the evidence is factually sufficient to support the jury’s findings with

respect to subsections (D) and (E).

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We need not address the sufficiency of the evidence to support the jury’s

findings with respect to subsection (N) regarding constructive abandonment. See In

the Interest of J.S., No. 09-20-00294-CV, 2021 Tex. App. LEXIS 4574, at *30 (Tex.

App.—Beaumont June 10, 2021, no pet.) (mem. op.) (noting if there are multiple

predicate grounds, we will affirm based on any one ground as only one is necessary

to terminate parental rights); see also Tex. R. App. P. 47.1 (requiring appellate court

to issue a written opinion as brief as practicable that addresses all issues necessary

to the appeal’s disposition). We overrule Father’s first issue.

2. Best-Interest Finding

In response to question four, the jury unanimously found by clear and

convincing evidence that termination of Father’s relationship with each of the

children is in the best interest of each child. The Court’s Charge included a non-

exclusive list of twenty-two factors the jury was to consider in determining the best

interest of the children. These included each of the factors listed in Texas Family

Code section 263.307(b) as well as each of the following factors listed by the Texas

Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976):

(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; (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
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relationship is not a proper one; and (I) any excuse for the acts or
omissions of the parent.

“No particular Holley factor is controlling, and evidence of one factor may be

sufficient to support a finding that termination is in a child’s best interest.” In the

Int. of K.D.R., No. 09-24-00089-CV, 2024 Tex. App. LEXIS 5882, at *19 (Tex.

App.—Beaumont Aug. 15, 2024, no pet. h.) (mem. op.). A determination of the

children’s best interest may be based on subjective factors or the totality of the

evidence. In the Interest of J.S., 2021 Tex. App. LEXIS 4574, at *32. Moreover, the

same evidence that is used to establish one of the predicates under subsection

161.001(b)(1) may also be used to establish termination is in the children’s best

interest. In the Interest of A.C., 560 S.W.3d 624, 631-32 (Tex. 2018).

As detailed above, the jury heard evidence that Father allegedly sexually

assaulted Gina and at the time of trial was awaiting his criminal trial for aggravated

sexual assault of a child. Considering this testimony, the jury reasonably could have

concluded Father would continue to engage in conduct that would not provide the

children with a safe and stable home. Additionally, the jury heard evidence both

children have special needs, are receiving therapy and taking medication and are

doing well in their foster placement. The jury also heard testimony the foster family

would be appropriate caregivers and could provide the children with a safe

environment. Foster Parents also wanted the children to remain in their care, and

there was testimony the children were happy in the Foster Family and did not express
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wishes to see Father. Finally, the jury heard testimony from the Department’s

supervisor and from the guardian ad litem that they believed termination of Father’s

parental rights would be in the children’s best interest.

Considering the totality of the evidence in the light most favorable to the

jury’s finding, we conclude a jury reasonably may have formed a firm belief or

conviction that termination of Father’s rights was in the children’s best interest. See

Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a), (b); Holley, 544 S.W.2d at 371-

72. Therefore, the evidence is legally sufficient to support the jury’s best-interest

finding.

Father argues Foster Parents were having financial and housing issues, that

eighty percent of their income comes from the children’s disability checks, and that

one of the children was on a waiting list for therapy at the time of trial.

Acknowledging it was the jury’s responsibility to determine the credibility of the

witnesses, resolve conflicts in the testimony and weigh all the evidence in light of

the statutory and Holley factors, we cannot say the disputed evidence the jury could

not reasonably have credited in favor of its best-interest finding is so significant that

the jury could not reasonably have formed a firm belief or conviction that

termination of Father’s rights is in the children’s best interest. See In the Interest of

J.F.C., 96 S.W.3d at 266. Therefore, we conclude the evidence is also factually

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sufficient to support the jury’s finding that termination of Father’s parental rights is

in the children’s best interest. We overrule Father’s second issue.

Conclusion

Having overruled both of Father’s issues, we affirm the trial court’s order

terminating Father’s rights.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on October 7, 2024
Opinion Delivered October 31, 2024

Before Golemon, C.J., Wright and Chambers, JJ.

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