K.D.G. and L.L.G. v. Department of Family and Protective Services

Opinion issued

February 23, 2012

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-11-00385-CV

———————————

C.H.

AND L.L.G., Appellants

V.

DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES ,

Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial

Court Case No. 2006 – 09289J

* * * *

————————————

NO. 01-11-00454-CV

NO. 01-11-00455-CV

———————————

K.D.G.

AND L.L.G., Appellants

V.

DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES ,

Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial

Court Case Nos. 2007 – 02686J & 2009 – 06674J

MEMORANDUM OPINION

In

these three appeals, appellant, L.L.G., challenges the final decrees signed by

the trial court terminating her parental rights to her four minor children, C.M.H.,

L.H., J.G., and K.G. [1] Appellant raises five identical issues in

each appeal challenging the legal and factual sufficiency of the evidence supporting

the termination of her parental rights.

We

affirm the final decree in each appeal.

Background Summary

In

October 2006, Appellant was charged with the felony offense of injury to a

child. The charge related to Appellant’s

assault of her son, then seven-year-old C.M.H.

Appellant later pleaded guilty to the lesser-included offense of assault — family violence, a class A

misdemeanor. In relation to this incident,

the Department of Family and Protective Services (“the Department”) took C.M.H.

and his five-year old sister, A.H., into custody. The Department filed its “Original Petition

for Protection of a Child, for Conservatorship, and for Termination in a Suit Affecting

the Parent-Child Relationship” in October 2006 against Appellant and the

children’s father, C.H.

Appellant

gave birth to a baby girl, J.G., in December 2006. In March 2007, the Department filed a

separate suit affecting the parent-child relationship with respect to J.G

against Appellant and J.G.’s father, K.D.G.

In

October of 2007, decrees were signed by the trial court regarding the three children.

In the 2006 action, concerning C.M.H.

and A.H., the court appointed their father, C.H., as the children’s sole

managing conservator. The court named

Appellant as a possessory conservator. In the 2007 action, the court named Appellant

and J.G.’s father, K.D.G., as J.G.’s joint managing conservators, with K.D.G. named

the primary managing conservator.

In

2008, C.H. took a job overseas. As a

result, C.M.H. and A.H. went to live with Appellant. Appellant had another daughter, K.L.G., on

December 29, 2008. K.D.G. is K.G.’s

biological father. In April 2009, Appellant

married K.D.G. At that point all, four

children were in Appellant’s care.

On

September 17, 2009, the Department received another referral alleging that

Appellant had physically abused A.H. The

referral stated that A.H. had complained to the school nurse that her back

hurt. An examination revealed that A.H. had

bruises on her thighs, bruising on her buttocks, and several linear bruises on

her back with scabbing. AH stated that Appellant

had hit her with a “white stick.”

The Department sent an

employee to Appellant’s home to investigate.

C.M.H. told the Department employee that Appellant hit him and A.H. with

the plastic rod used to adjust the window blinds, with extension cords, and with

belts. He told the employee that he was

afraid because he would get “ whupped ” by Appellant after

the employee left.

In an

affidavit, the Department employee would later testify,

Because of the visible bruising, the disclosures made by

the children, [C.M.G.’s] fear of his mother and the lack of protective adults

in his life, and [Appellant’s] significant past history including a conviction

for injury to a child based on an incident which required [C.M.G.] to have

emergency medical treatment after a “ whupping ,” . . .

the decision was made to remove the children from the care of [Appellant].

The Department took all four children into custody

and placed them in foster homes.

In the

2006 and 2007 suits involving the three oldest children, the Department filed an

“Original Motion to Modify Conservatorship, for Termination of Parent-Child

Relationship, and Suit for the Protection of a Child in an Emergency.” On September 21, 2009, the Department also

filed a new suit by filing its “Original Petition for Protection of a Child,

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

pertaining to Appellant’s fourth child, K.G.

In all three suits, the Department requested that the parent-child

relationship be terminated between Appellant and her four children. To

support termination, the Department relied on acts that, as defined by Family

Code section 161.001(1), support termination of the parent-child relationship. The Department cited Appellant’s placement on

d eferred adjudication community supervision for her assault of C.M.H. in

October 2006, conduct supporting termination under subsection 161.001(1 )( L). [2]

The

Department also alleged that Appellant had “knowingly placed or knowingly

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

physical or emotional well-being of the child, pursuant to § 161.001(1 )( D), Texas Family Code” and had “engaged in conduct or

knowingly placed the children with persons who engaged in conduct which

endangers the physical or emotional well-being of the children, pursuant to § 161.001(1)(E),

Texas Family Code.” [3] The Department also relied on Appellant’s

alleged failure, in violation of subsection 161.001(1 )( O),

to comply with provisions of a court order that specifically established the

actions necessary for the parent to obtain the return of the children who have

been in the permanent or temporary managing conservatorship of the Department

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

parent as a result of abuse or neglect of the children. [4]

In addition,

the Department sought to terminate the parent-child relationship between the

four children and the respective fathers.

Specifically, it sought to terminate the parent-child relationship

between C.H. and the two oldest children, C.M.H. and A.H., and to terminate the

parent-child relationship between K.D.G. and the two youngest children, J.G.

and K.G. The Department requested that,

in the event the parental rights of Appellant and the fathers were terminated,

it be appointed the children’s sole managing conservator.

The three suits

were tried together to a jury in March 2011.

Incorporating the jury’s findings, the trial court rendered decrees for

termination in each case terminating the parent-child relationships between

Appellant and her four children and between the children and their

fathers. With respect to the termination

of Appellant’s parental rights, the decrees recite that the trial court found,

by clear and convincing evidence, that Appellant had engaged in conduct as

defined in Family Code subsections 161.001(1)(D), (E), (L), and (O). Each decree further recites that

the trial court determined by clear and convincing evidence that termination of

the parent-child relationship was in the children’s best interest. The trial court also appointed the Department

as sole managing conservator of the children.

Legal Sufficiency of the

Evidence to Support Termination

Appellant

presents five identical issues in each appeal. Her first four issues raise challenges to the

legal and factual sufficiency of the evidence to support the predicate

termination findings under Family Code subsections 161.001(1)(D), (E), (L), and

(O). Appellant’s fifth issue challenges

the legal and factual sufficiency of the evidence to support the finding that

termination was in the children’s best interest.

A. Burden of Proof and Standards of Review

The

burden of proof at trial in parental-termination cases is by clear and

convincing evidence. Tex. Fam.Code Ann . § 161.001; In re J.F.C ., 96 S.W.3d 256, 263 (Tex. 2002).

Section 161.001 of the Family Code

provides the method by which a court may involuntarily terminate the

parent-child relationship. See Tex.

Fam. Code. Ann . § 161.001. Under this section, a court may order the

termination of the parent-child relationship if the court finds, by clear and

convincing evidence, that (1) one or more of the acts enumerated in section

161.001(1) was committed and (2) termination is in the best interest of the

child. Id . “Only one predicate

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

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

best interest.” In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003).

“‘Clear

and convincing evidence’ means 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 (Vernon 2008); J.F.C .,

96 S.W.3d at 264 . This

heightened burden of proof results in a heightened standard of review.

When

determining legal sufficiency, we review 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.” J.F.C .,

96 S.W.3d at 266 . To give appropriate deference to the fact finder’s

conclusions, we must assume that the fact finder resolved disputed facts in

favor of its finding if a reasonable fact finder could do so. Id . We disregard all evidence that a reasonable

fact finder could have disbelieved or found to have been incredible. Id . This does not mean that we must disregard all

evidence that does not support the finding. Id . The

disregard of undisputed facts that do not support the finding could skew the

analysis of whether there is clear and convincing evidence. Id . Therefore, in conducting a legal-sufficiency

review in a parental-termination case, we must consider all of the evidence,

not only that which favors the verdict. See City of Keller v. Wilson ,

168 S.W.3d 802, 817 (Tex. 2005).

In

determining a factual-sufficiency point, the higher burden of proof in

termination cases also alters the appellate standard of review. In re C.H. , 89 S.W.3d 17, 26 (Tex. 2002). “[A] finding that must be based on clear and

convincing evidence cannot be viewed on appeal the same as one that may be

sustained on a mere preponderance.” Id . at 25. In considering whether evidence rises to the

level of being clear and convincing, we must consider whether the evidence is

sufficient to reasonably form in the mind of the fact finder a firm belief or

conviction as to the truth of the allegation sought to be established. Id .

We consider whether disputed evidence is such that a reasonable fact finder

could not have resolved that disputed evidence in favor of its finding. J.F.C. ,

96 S.W.3d at 266 . “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 fact finder

could not reasonably have formed a firm belief or conviction, then the evidence

is factually insufficient.” Id .

The

natural rights that exist between parents and their children are of

constitutional dimension. Holick v. Smith , 685 S.W.2d 18,

20 (Tex. 1985). Therefore, termination proceedings should be strictly

scrutinized, and the involuntary termination statutes should be strictly

construed in favor of the parent. Id .

at 20 – 21. However, “[j] ust as

it is imperative for courts to recognize the constitutional underpinnings of

the parent-child relationship, it is also essential that emotional and physical

interests of the child not be sacrificed merely to preserve that right.” C.H. ,

89 S.W.3d at 26 .

B. Challenge to Predicate Finding Under

Subsection 161.001(1 )( L)

As

mentioned, the termination of Appellant’s parental rights to her four children

was predicated on, among others, a violation of Family Code subsection

161.001(1 )( L). In

her third issue, Smith contends that the evidence was legally and factually

insufficient to support that predicate finding.

Subsection

L of section 161.001(1) permits termination when clear and convincing evidence

shows that the parent has

been convicted or has been placed on community

supervision, including deferred adjudication community supervision, for being

criminally responsible for the death or serious injury of a child under the

following sections of the Penal Code or adjudicated under Title 3 for conduct that

caused the death or serious injury of a child and that would constitute a

violation of one of the following Penal Code sections:

( i )

Section 19.02 (murder);

(ii) Section 19.03 (capital

murder);

(iii) Section 19.04

(manslaughter);

(iv) Section

21.11 (indecency with a child);

(v) Section 22.01 (assault);

(vi) Section

22.011 (sexual assault);

(vii) Section 22.02 (aggravated

assault);

(viii) Section 22.021 (aggravated

sexual assault);

(ix) Section 22.04 (injury to a

child, elderly individual, or disabled individual);

(x) Section 22.041 (abandoning or

endangering child);

(xi) Section 25.02 (prohibited

sexual conduct);

(xii) Section 43.25 (sexual

performance by a child);

(xiii) Section 43.26 (possession

or promotion of child pornography);

(xiv) Section 21.02 (continuous

sexual abuse of young child or children);

(xv) Section 20A.02( a)(7)

or (8) (trafficking of persons); and

(xvi) Section 43.05(a )( 2) (compelling prostitution).

Tex. Fam. Code Ann. §

161.001 (1 )( L).

Here, the

trial court instructed the jury that Appellant’s parental rights could be

terminated if it found that Appellant had “caused serious injury to [C.M.H.] by

an act or acts that resulted in the parent being placed on deferred

adjudication community supervision.” Appellant

does not dispute that the evidence at trial established that she was placed on

deferred adjudication community supervision for the Class A misdemeanor offense

of assault – family

violence with respect to the injuries she inflicted on C.M.H. in October 2006. See Tex. Penal Code Ann. §§ 22.01 ( a )( 1), 22.01 (b)

(Vernon 2011); see also Tex. Fam. Code Ann. § 71.004 (Vernon 2008). She also does not dispute that the offense of

assault –family violence

is a violation of Penal Code section 22.01 which can support termination under

Family Code subsection 161.001(1 )( L)(v) if the assault resulted in serious injury of

a child .

See Tex. Fam. Code Ann. § 161.001 (1 )( L) (v) .

Appellant bases her sufficiency

challenge on the premise that the Department did not show that C.M.H. suffered

“serious injury” as result of the assault by Appellant. Appellant points out that neither the Family

Code nor the Penal Code defines “serious injury.” The jury charge also did not define it for

the jury.

Appellant points

out that the Class A misdemeanor offense of assault –family violence requires an establishment of “bodily

injury” but not “serious injury.” The

Penal Code defines “bodily injury” as “physical pain, illness, or any

impairment of physical condition.” See Tex.

Penal Code Ann. § 1.07 ( a )( 8) (Vernon

Supp. 2011) . Appellant asserts that, because “serious

injury” is not an element of the offense of Class A misdemeanor assault –family violence, the

Department did not meet its burden to show that she was responsible for serious

injury to C.M.H. Appellant posits that

the Department had to show “serious bodily injury,” as defined in the Penal

Code, was inflicted in the commission of the offense in order for section

161.001(L) to support termination. The

Penal Code defines “serious bodily injury” as “bodily injury that creates a

substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. § 1.07(a )( 46). Appellant contends that the Department did

not offer sufficient evidence to establish that C.M.H. suffered serious bodily

injury as defined in the Penal Code.

Appellant’s

assertion that the Department was required to show that C.M.H. suffered “serious

bodily injury” as defined in the Penal Code finds no support in the law. To the contrary, a review of the offenses listed

in section 161.001(1 )( L) contradicts this

assertion. A number of the offenses

identified in subsection L do not require a showing of any form of bodily injury. For example, one means of committing the

offense of indecency with a child — an

offense listed in subsection L — is

exposure by a person of his anus or genitals to a child under the age of 17

years if the exposure was done with intent to arouse or gratify the sexual

desire of any person. T ex. Penal Code Ann. § 21.11

( Vernon 2011). A victim of such an offense may not suffer

bodily injury but may nonetheless suffer serious injury in the form of

emotional or psychological injury. See In re A.R.R. , 61 S.W.3d 691, 700

(Tex. App.—Fort Worth 2001, pet. denied) (holding that evidence was sufficient

to show that aggravated sexual assault victim had suffered “serious injury” for

purposes of subsection L because evidence showed that she suffered damage to

her emotional well-being that would be a life-long problem), disapproved of on other grounds by In re A.V .,

113 S.W.3d 355, 360 (Tex. 2003) and In re C.H ., 89 S.W.3d 17, 26 (Tex. 2002).

Subsection L’s inclusion of such offenses

indicates that the type of “serious injury” supporting termination of parental

rights does not require “bodily injury” nor is it synonymous with “serious

bodily injury,” as defined in the Penal Code. Cf. In re L.S.R. , 92 S.W.3d 529, 530 (Tex. 2002) (denying petitions

for review but also disavowing any suggestion by court of appeals’ opinion that

“molestation of a four-year-old, or indecency with a child, generally, does not

cause serious injury” for purposes of subsection L).

When, as

here, a term is not defined in a statute, we give it its ordinary meaning. See

Tex. Gov’t Code Ann . § 312.002 (Vernon 2005); City of San Antonio v. Hartman , 201 S.W.3d 667 , 672 n.19 (Tex. 2006). Similarly, because the jury charge did not include

a definition of “serious injury,” we assume that the jurors applied the plain

and ordinary meaning of the word. See Fenner v.

Samson Res. Co. , No. 01 – 03 – 00049 – CV, 2005 WL 2123043 , at

*3 (Tex. App.—Houston [1st Dist.] Aug. 31, 2005, pet.

denied) ( mem . op.).

The

dictionary defines “serious” in the context of “serious injury” to mean “having

important or dangerous possible consequences.”

Webster’s New

Collegiate Dictionary 1050 (1981).

Injury is defined as “hurt, damage, or loss sustained.” Id. at 589 .

At trial, the

Department offered into evidence its caseworker’s affidavit containing the

following description of the events and the injuries that had been reported in

relation to Appellant’s assault of then seven-year-old C.M.H.:

. . . . [Appellant] mother beat [C.M.H.] with a

belt. Police were called to the

scene. When they arrived, [C.M.H.] was

being treated by Houston Fire Department paramedics. [C.M.H.] was transported to the emergency

room of Texas Children’s Hospital.

[C.M.H.] has very heavy “railroad track” type marks across his back and

across his lower stomach. [C.M.H.]’s

left eye is swollen shut and there is a half-moon laceration under [C.M.H.]’s

left eye. The mother’s explanation for

the eye injuries are that [C.M.H.] ran into a doorknob while running from

mother. [C.M.H.] is small for a

seven-year-old. Mother has been arrested

for injury to a child.

. . . . When Houston Fire Department arrived they

found [C.M.H.] sitting alone in the bathroom very distraught. He was shaking and scared to speak whenever

mother was present. He has injuries all

over his body. His eyes are swollen. He has belt marks head-to-toe. He has swollen limbs, especially his thighs

and legs. The physician examining [C.M.H.]

found evidence of chronic abuse. He has

scars all over his body from abuse. The

physician also examined [A.H.]. The physician found multiple scars on [A.H.]. There are scars in the forms of linear marks

across her belly. When she was asked

what happened, she said her mother cut her with a knife. [C.M.H.] could possibly be admitted due to his

injuries. He is unable to walk at this

point and is having to be transported by wheelchair.

Other

evidence admitted at trial showed that C.M.H. was taken to the Texas Children’s

Hospital’s emergency room following the incident. He was admitted to the hospital and stayed

there for four days. “The Physicians

Statement Regarding Injury to a Child” from Texas Children’s Hospital was admitted

into evidence. It contains a sworn physician’s

statement indicating that permanent injury could have resulted to C.M.H. had he

not obtained immediate medical treatment. The physician specifically indicated that

C.M.H.’s eye needed ophthalmologic follow-up.

The physician described C.M.H.’s injuries as follows: “Patient has

multiple bruises/welts over chest/abdomen, thighs and arms. Has left eye swollen shut with a laceration

under orbit.

Per ophthalmologist [patient] has ‘corneal clouding’ (suggestive of

edema and trauma).”

Given the

record, we conclude that the evidence, viewed in the light most favorable to

the subsection 161.001(1)(L) finding, was sufficiently clear and convincing

that a reasonable fact finder could have formed a firm belief or conviction

that Appellant had been placed on deferred adjudication

community supervision for being criminally responsible for the serious injury

of [C.M.H.]. We further conclude that,

viewed in light of the entire record, any disputed evidence could have been

reconciled in favor of the section 161.001(1)(L) finding or was not so

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

or conviction that the elements of subsection L were shown. Accordingly, we hold that the evidence was

legally and factually sufficient to support the section 161.001(1 )( L) finding.

We overrule

Appellant’s third issue in each appellate cause. [5]

C. Best Interest Finding

1. Legal

Principles

In her fifth

issue, Appellant challenges the finding that termination would be in the children’s

best interest. See Tex. Fam.

Code Ann . § 161.001(2) (Vernon 2011).

Some of the factors that an appellate

court may consider in ascertaining the best interest of a child include the

non-exhaustive list set forth in Holley

v. Adams , 544 S.W.2d 367 , 371 – 72

(Tex. 1976). Those factors include the

following: (1) the desires of the child; (2) the emotional and physical needs

of the child now and in the future; (3) the emotional and physical danger to

the child now and in the future; (4) the parental abilities of the individuals

seeking custody; (5) the programs available to assist these individuals to

promote the best interest of the child; (6) the plans for the child by these

individuals or by the agency seeking custody; (7) the stability of the home or

proposed placement; (8) the acts or omissions of the parent that may indicate

that the existing parent-child relationship is not a proper one; and (9) any

excuse for the acts or omissions of the parent. Id . These factors are not exhaustive. C.H .,

89 S.W.3d at 27 . “Best interest” does not require proof of any

unique set of factors, nor does it limit proof to any specific factors. Holley ,

544 S.W.2d at 371 – 72 .

The Holley

test focuses on the best interest of the child, not the best interest of the

parent. In re R.F ., 115 S.W.3d 804, 812 (Tex. App. — Dallas 2003, no pet.).

The need for permanence is the paramount

consideration for a child’s physical and emotional needs. Id . The goal of establishing a stable, permanent

home for a child is a compelling governmental interest. Id.

With the

foregoing legal precepts in mind, we review the legal and factual sufficiency

of the evidence to support the finding that termination was in the children’s

best interest.

2. Analysis

The evidence

discussed above supporting the subsection L determination is also probative of

whether termination of Appellant’s parental rights is in the children’s best

interest. See C.H. , 89 S.W.3d at 28 . Specifically, the evidence showing the

severity of the injuries inflicted on C.M.H. is probative of the best interest

finding. In addition, the record shows

that A.H. had physical injuries inflicted by her mother over time.

When C.M.H.

was taken to the hospital in October 2006, A.H. was also taken to the emergency

room by emergency response personnel.

Medical records from Texas Children’s hospital indicate that then

five-year-old A.H. had bruising and scars “not typical in areas explained by

active children.’” The physician

indicated that his “impression” relating to A.H.’s “condition” was

“non-accidental trauma.” The evidence

showed that when the Department investigator spoke with Appellant regarding her

assault of C.M.H., Appellant admitted to hitting C.M.H. and also to hitting

A.H. Appellant

told the investigator that she had hit the children with a belt because she

caught C.M.H. touching A.H.’s bottom. Appellant

admitted that she had overreacted. She

attributed her overreaction to the fact that she had been sexually abused as a

child by her father.

The evidence also

showed that, in September 2009, Appellant hit A.H. with a plastic rod leaving

linear bruising on A.H.’s thighs, buttocks, and back “with scabbing.” During a later psychological evaluation,

Appellant admitted to hitting A.H. but stated that she had not realized how

hard she was hitting her. The Department

employee investigating the September 2009 referral also noted that C.M.H. had

“old marks on his legs, arms, and face.”

In addition

to the assault of C.M.H. in 2006 and the abuse of A.H. in 2009 that resulted in

the final removal of the children from Appellant’s home, the Department

introduced evidence that it had received other referrals regarding Appellant’s

abuse of her children. In an affidavit, a

Department employee, who investigated the September 2009 abuse involving A.H.,

offered the following testimony regarding earlier referrals received by the

Department:

On January 17, 2006, [the Department] received a referral

alleging Physical Abuse of 6 year old [C.M.H.] by his mother . . . . The referral stated that [C.M.H.] had a cut on

his lip and a missing tooth. It stated that [C.M.H.] said that he obtained the

cut on his lip as well as the tooth being knocked out during a “whooping.” [C.M.H.] said that his mother was angry

because the teacher told his mother that he was not behaving on Friday. [C.M.H.] said his mother hit him with a belt

on his face. He said the belt did not

have a buckle but was a stretchy belt. [C.M.H.]

said he was hit all over his body, including his face, with the belt. [C.M.H.] had no other marks or bruises from

the belt. [C.M.H.] later said that his

tooth did not occur from being hit with the belt but his Aunt [] pulled it out.

However, [C.M.H.] was consistent about how

he obtained the cut on his lip. This

case was ruled Unable to Determine.

On March 27, 2006, [the Department] received another

referral alleging Physical Abuse, Emotional Abuse and Sexual Abuse of [C.M.H.] and

Sexual Abuse of [A.H.] by their mother . . . and their maternal grandparents .

. . . The referral stated on Saturday

March 25, 2006, [C.M.H.] was seen with a “knot” under his eye that was “puffy

and red.” The referral stated that [Appellant]

hit [C.M.H.] in the eye and it looked like there was also a scratch possibly

from a ring. [C.M.H.] stated that [Appellant] hates him and she tells him that

she doesn’t like him. The referral

stated that [Appellant] makes [C.M.H.] sit in a dark room so “she doesn’t have

to look at him.” The referral also stated

that the maternal grandfather is a child molester that sexually abused all

three of his daughters when they were children.

The referral stated that the maternal grandmother did not protect her

own children and is unable to protect her grandchildren. This case was Ruled Out.

The affidavit

also identified six other referrals received by the Department involving Appellant

and her children in which allegations of abuse or neglect had been made. The affidavit indicated that these referrals

had been “ruled out,” “closed without disposition,” or “unable to

determine.”

The forensic

interviewer from the Children’s Assessment Center, who had interviewed C.M.H.

and A.H. following the 2009 referral, testified at trial. She stated that, from the children’s

descriptions of being hit with the rod from the window blinds, belts, and

extension cords, she believed that Appellant’s abuse of the children was not a

single occurrence but was ongoing abuse.

Evidence was

also presented that the children were exposed to domestic violence while living

with Appellant. The evidence showed that

Appellant’s first husband, C.H. —the

father of C.M.H. and A.H.—had been convicted of assaulting Appellant and that

the children had witnessed the domestic violence. Other evidence showed that Appellant claimed

that her second husband, K.D.G.—father of J.G. and K.G.—was also controlling

and abusive. The record indicated that

Appellant had difficulty understanding that her children could be placed at

risk by being in a home where there is domestic violence.

At trial, the evidence also showed

that the three girls, A.H., J.G., and K.G. were living with their maternal aunt

and C.M.H. was placed with his maternal great-aunt. Testimony was given that the relatives want

to adopt the children. The evidence

further showed that all four children are happy in their current

placements. C.M.H. and A.H. are doing

well in school and are each on the honor role.

Other testimony from a Department employee working with the children in

their current placements indicated that the two youngest children, J.G. and

K.G., “are doing great also.”

Evidence showed that, over the years, C.M.H.

and A.H. expressed their fear of Appellant.

The court appointed guardian ad litem for the children interviewed C.M.H.

and A.H. several days before trial. Each

expressed to him a desire not to return to their mother and to stay in his and

her current placement. A.H. told the ad

litem that she was afraid of Appellant.

C.M.H. stated that he feared returning to Appellant because he thought it

would ultimately result in his return to CPS custody.

At the time of trial, the two younger

children, J.G. and K.G. were three years old and five years old. Thus, no evidence was presented regarding

either J.G.’s or K.G.’s desire to return to Appellant.

As evidence

weighing against the best-interest finding, Appellant points to the following: (1)

a number of witnesses testified that the two oldest children had expressed that

each missed their mother; (2) the forensic interviewer from the Children’s

Assessment Center testified that A.H. said that her mother was “nice” and that

A.H. wanted to see her mother; (4) the forensic interviewer stated that neither

C.M.H. nor A.H. indicated that he or she were afraid of Appellant; (5) the

guardian ad litem testified that he observed the interaction between Appellant

and the children during scheduled visits to be “generally good”; (6) Appellant

has taken parenting, anger management, and domestic violence classes; (7) Appellant

has “on her own initiative” taken and paid for individual therapy and marriage

classes; (8) Appellant is attending college; and (9) Appellant has paid a

portion of the child support she was ordered to pay after the children were

removed from her home.

Appellant also

asserts in her brief as follows:

Appellant testified that as a result of taking the

services, she learned to better evaluate herself and better understand her

children. In addition she was willing to

continue taking anger management classes and extensive parenting classes to

avoid losing her parental rights.

Despite being the victim of sexual abuse as a child, the psychiatric

evaluation found that she does not suffer from any major psychiatric illness

that would prevent her from parenting her children.

The

evidence admitted at trial indicates that appellant is in the process of being

rehabilitated. She was attending

Remington College and making child support payments to the best of her

ability. She completed anger management,

parenting and domestic violence courses.

On her own initiative, she was participating in individual therapy and

had taken marriage classes. She was even

paying for individual therapy on her own.

Undeniably, applying

the Holley factors, some evidence exists

in the record weighing against the best interest finding. The record contains evidence showing that Appellant

has taken steps both to improve her life and to be a good parent. Nonetheless, evidence cannot be read in

isolation; it must be read in the context of the entire record. In termination cases, like elsewhere, it is

within the sole province of the jury to weigh the credibility of witnesses. See In

re S.L ., 188 S.W.3d 388 , 394 (Tex. App. — Dallas 2006, no pet.) ( citing

Golden Eagle Archery, Inc. v. Jackson ,

116 S.W.3d 757, 761 (Tex. 2003) (stating fact finder “is the sole judge of the

credibility of witnesses and the weight to be given to their testimony”)). Here, the fact finder could have reasonably

inferred that Appellant would continue her pattern and practice of physically abusing

her children as she had over the years. The

jury also could have inferred that, as the two younger children became older,

they also might be subject to abuse. Such an inference relates directly to Appellant’s

ability to provide a stable and suitable home for her children and indicates

that the children’s physical and emotional well-being may be endangered in the

future. In sum, given the evidence, the jury

could have reasonably inferred that the children were at risk for abuse should they

be placed with Appellant and that Appellant could not provide them with a safe

and stable home.

Given the

evidence, we conclude that the evidence, viewed in the light most favorable to

the best-interest finding, was sufficiently clear and convincing that a

reasonable fact finder could have formed a firm belief or conviction that

termination of the parent-child relationship between Appellant and her four

children was in the children’s best interest.

We further conclude that, viewed in light of the entire record, any

disputed evidence could have been reconciled in favor of the finding that

termination of the parent-child relationship between Appellant and her children

was in their best interest or was not so significant that the fact finder could

not reasonably have formed a firm belief or conviction that termination was in

the children’s best interest. Thus, we

hold that the evidence was legally and factually sufficient to support the

best-interest finding.

We overrule

Appellant’s fifth issue in each appellate cause

Conclusion

We

affirm the final decree in each appellate cause terminating Appellant’s

parental rights.

Laura Carter Higley

Justice

Panel consists of Chief

Justice Radack and Justices Higley and Brown.

[1]

The Department of Protective and Family Services

filed three separate suits affecting the parent-child relationship involving

L.L.G.’s four children. The first suit pertains

to the minor children, C.M.H. and A.H. It

bears trial court cause number 2006–09289J and appellate cause number 01 – 11 – 00385-CV. In that suit, the parental rights of the

children’s father, C.H. were also terminated.

The father filed a notice of appeal.

We dismissed his appeal by interlocutory order after he failed to file

his appellate brief and prosecute his appeal.

See Tex. R. App. P. 38.8(a),

42.3(b), 43.2(f). The

second suit pertains to the minor child, J.G. It bears trial court cause number 2007–02686J and

appellate cause number 01–11–00455–CV. The

third suit pertains to the minor child, K.G. It bears trial court cause number 2009–06674J and

appellate cause number 01-11–00454–CV. In those two suits, the parental rights of

K.D.G., the father of J.G. and K.G., were also terminated. The father, K.D.G., filed a notice of appeal

but failed to file an appellate brief.

We dismissed K.D.G.’s appeal by interlocutory order for failing to

prosecute his appeal. See TEX. R. APP. P. 38.8(a), 42.3(b), 43.2(f).

[2] See Tex.

Fam. Code Ann . § 161.001(1 )( L) (Vernon Supp.

2011).

[3] See

id. §§ 161.001(1 )( D), 161.001(1)(E).

[4] See

id. § 161.001(1 )( O).

[5]

Having determined that the evidence was legally and

factually sufficient to support termination based on subsection 161.001(1 )( L), we do not reach Appellant’s issues asserting that the

evidence was insufficient to support a finding under subsections D, E, and O. See In

re A.V. , 113 S.W.3d 355, 362 (Tex. 2003).