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In re L.E.

Court of Appeals of Texas, Eleventh District

August 15, 2019

IN THE INTEREST OF L.E., A CHILD

          On Appeal from the 220th District Court Comanche County, Texas Trial Court Cause No. FM15517

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          KEITH STRETCHER, JUSTICE

         This is an appeal from an order in which the trial court terminated the parental rights of the mother and father of L.E. Both parents appeal. On appeal, the mother presents three issues in which she challenges the sufficiency of the evidence as to the termination of her parental rights and two issues in which she challenges the trial court's order insofar as it relates to the payment of child support. The father presents five issues challenging the portion of the trial court's order that relates to the payment of child support. We reverse and render in part, and we affirm in part.

         Termination Findings and Standards

         The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) and that termination is in the best interest of the child. Fam. § 161.001(b).

         In this case, the trial court found that both parents had committed three of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), and (O). Specifically, the trial court found that the parents had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the child's physical or emotional well-being; that the parents had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being; and that the parents had failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of the child, who had been in the managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parents for abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that termination of each parent's parental rights would be in the best interest of the child. On appeal, neither parent challenges the best interest finding, but the mother challenges the findings made by the trial court pursuant to subsections (D), (E), and (O).

         Background Facts

         The record shows that the Department first became involved with the family in 2015 or early 2016 when L.E. was four years old. At that time, there were allegations of sexual abuse involving L.E. and physical abuse involving L.E. and her brothers, H.G. and N.G.

         In early 2016, the mother took L.E. to Head Start with lots of bruises and red marks on L.E.'s face. L.E. said that "mommy had hit her." According to L.E.'s teacher, L.E. often had bruises on her legs and arms. L.E.'s brothers, H.G. and N.G., "always" had bruises everywhere. At Head Start, the mother was observed jerking N.G.'s "leash" and pulling H.G. by the arm "really hard."

         Additionally, both the father and a friend of the mother testified about the mother's physical abuse of her children. At the termination hearing, the father testified that the mother was abusive to their three children-L.E., H.G., and N.G. The father testified about specific instances of physical abuse committed by the mother. The mother admitted to striking L.E. in the face in 2016 and to accidentally hitting H.G. with a shoe, but otherwise denied any physical abuse of her children.

         The mother, however, did admit that she knew about the father's sexual abuse of L.E. at the time that he was committing those crimes against their daughter. The mother testified that the father began sexually assaulting L.E. when L.E. was three and one-half or four years old. According to the mother, she had walked in on the father and L.E. when L.E. was between the father's legs and the father's shorts were "part way down on his legs." The mother testified that she asked the father what was going on and that he told her "[L.E.] was just sucking his finger." Another instance of sexual abuse occurred when L.E. was in the shower with the father and the mother was in the same bathroom bathing H.G. in his little bathtub. Prior to getting in the shower, the father told the mother that, since the mother would not perform oral sex on him, he would just have L.E. do it instead. While L.E. and the father were in the shower together, L.E. started making noises; the mother heard L.E. "coughing and choking." The mother did nothing-except go to the other room with H.G. The mother also testified that L.E. would tell the mother about the things that the father did to L.E. After the shower incident, L.E. told her mother that "Daddy stuck his thing in my mouth." The mother still did nothing to protect L.E.

         The mother testified that the father sexually assaulted the mother anally while L.E. and H.G. were in the room. The mother also testified that, one time when she refused to have "anal sex" with the father, he told her that "he would get it from [L.E.]." The father then "got the Vaseline out," and the mother, who said she thought the father was joking, went to go take a shower. According to the mother, the father sexually abused L.E. during a period of more than one year. The mother admitted that she was not protective of L.E.

         The mother also testified that the father had grabbed H.G. by the neck and choked him when he was about one year old and would not stop crying. The mother did not report any of the father's conduct to the police or to CPS, did not ask the father to leave (they lived at the mother's ...


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