in the Interests of J. J., J. S, J.E., and C.E, Children ( 2006 )

                              NUMBER 13-04-202-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

             IN THE INTEREST OF J.J., J.S., J.E., AND C.E., CHILDREN

       On appeal from the 24th District Court of Victoria County, Texas.

             CONCURRING AND DISSENTING MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Hinojosa and Yañez

    Concurring and Dissenting Memorandum Opinion by Justice Yañez                

I concur in part and dissent in part.  I agree with the majority=s decision to affirm the court=s order terminating appellant, Jerry Edward=s parental rights. However, I respectfully dissent from the majority=s decision affirming termination of appellant, Cheryl Edward=s parental rights. Accordingly, I would remand this case for a new trial to determine Cheryl=s parental rights.

            Further, I write separately because I believe a more thorough recitation and review of the facts and analysis are necessary in this termination proceeding. Parental rights are of constitutional dimension and termination is the most drastic remedy because of its final and irrevocable nature.^[1]  Consequently, it is our duty as an appellate court to adequately recite the relevant facts and fully address the issues raised on appeal.

Facts

The majority=s factual recitation emphasizes factors that reflect negatively on the parents, while omitting most facts favorable to the parents.  Because I believe a recitation of all relevant facts are essential to this proceeding, I will address the majority=s omissions, and provide a comprehensive factual recitation and detailed analysis.

With regard to Jerry, the majority notes Jerry=s status as a sex offender, but omits facts relevant to how his status relates to the termination proceeding. 

At trial, Regina Williamson, a former TDPRS caseworker, testified that she was assigned to the Edwards= case and that Jerry told her he was on probation because of his sex offender status. Williamson, however,  acknowledged that Jerry informed her that the terms of his probation did not prohibit him from being around his children. Williamson testified she told Jerry she did not know if TDPRS=s policy prohibited such contact.  She admitted that she could not remember whether she inquired regarding whether Jerry=s status prohibited him from being around his children.  Jerry testified that he had attended counseling for sex offenders, which he claimed allowed him to be around his children.  Cheryl also testified that she was unaware of his status as a sex offender when they first met, had been married to him for six years and was married to him at the time of trial, and that Jerry had never harmed any of the children. 

Cheryl=s decision to allow the children to be around Jerry was a strongly disputed  issue at trial.  The majority=s notation of his status, without mentioning that it was unclear whether the terms of his probation precluded him from associating with his children, militates only in favor of TDPRS.  Without a full recitation of the relevant facts, the majority presents a severely circumscribed portrayal of this issue.

With regard to Cheryl, the majority notes that Cheryl (1) ignored TDPRS=s recommendations and (2) had used drugs since the age of sixteen.  However, the majority failed to mention several undisputed facts pertinent to these two issues.

The majority notes that TDPRS recommended that Cheryl enter drug rehabilitation. However, it does not mention Cheryl=s testimony that she attempted to check herself into a rehabilitation program, but was informed by program representatives that their facility did not treat marihuana users. Without recitation of Cheryl=s testimony, a misguided perspective is created that Cheryl made little or no effort to comply with TDPRS=s recommendation regarding rehabilitation.  

In light of these omissions, a comprehensive recitation of the facts, and detailed analysis are set forth below. 

This termination proceeding arose because of an incident that occurred on November 1, 2002. Early that evening, Cheryl decided to go out with a friend to a local bar.  A few hours after Cheryl left her home, one of the children fell from a living-room sofa and bloodied his nose.  At the time of the accident, the children were apparently left unattended. Immediately after the accident, the two oldest children, J.J. (age 10)  and J.S. (age 8), requested assistance from a neighbor who lived nearby. The neighbor was unable to reach Cheryl by telephone, and as a result, called the police.  A few hours after the police arrived, Cheryl arrived home at approximately 3:00 a.m.  Days later after an investigation, TDPRS filed its original petition and request for temporary orders to permanently remove the children from her custody.

On February 17, 2004, the termination action proceeded to a bench trial, where the trial court heard testimony from several witnesses.  The first witness, Randall Branecky, a Victoria County police officer, testified that he responded to the neighbor=s call for assistance on the night in question.  Branecky testified that Cheryl arrived home early the next morning and that he questioned her regarding why the children were left unattended.  According to Branecky, Cheryl claimed she was at a friend=s house and that she had left the children with babysitters, although Branecky was unable to corroborate her claim. Branecky testified that because of the November 1, 2002 incident, Cheryl was subsequently indicted and convicted for child endangerment.             

Sara Perry, a former TDPRS caseworker, testified that she was on-call for TDPRS on the evening of November 1, 2002.  According to Perry, she arrived at Cheryl=s apartment shortly after police arrived.  Perry claimed that Cheryl arrived home around 3:00 a.m. the next morning.  At that time, Cheryl told Perry that she had left the children with paid babysitters and did not know why the babysitters left early.  Perry further testified that when Cheryl arrived home, she did not appear to be under the influence of any intoxicant and that she did not know whether Cheryl was under the influence of drugs or alcohol when she returned home.

Regina Williamson, a former TDPRS caseworker, testified that she was assigned to Cheryl=s case a few days after the children=s removal, but was not present at the time of their removal.  According to Williamson, prior to the children=s removal, Cheryl had been investigated numerous times since 1994 for child abuse resulting in one conviction for injury to a child.  As a result of past investigations, Williamson testified that TDPRS recommended that Cheryl attend counseling.  Despite TDPRS=s recommendation, Williamson testified that Cheryl had not attended counseling on a regular basis.

Williamson also contacted Jerry, a convicted sex offender,^[2] who is the father of J.E. and C.E.,  to inform him that the children were in foster care.  Jerry told Williamson that he wanted to see the children and that his probation officer said it was A. . . all right for him to be around children.@  Williamson testified she told Jerry A. . . [she] wasn=t sure what policy was and that [she] [would] . . . check that out.@  After her conversation with Jerry, she discovered that Jerry was once again incarcerated.  At trial, Williamson could not remember whether she inquired regarding sex-offender policy and did not know whether Jerry was prohibited from being around the children.

Cheryl, who was thirty-two years old at the time of trial, testified that she had been incarcerated for fifteen months and that she would be released sometime between November 2004 and February 2005.  Cheryl testified that on November 1, 2002, she had gone out with a friend and, despite her probation,^[3] had consumed a couple of drinks.  Cheryl claimed that she left the children with babysitters and that she had arranged for the sitters to spend the night.  She further stated that she left three dollars in quarters for emergency phone calls and that a pay phone was located approximately fifty feet from her home.  Cheryl also stated that she was unaware that the babysitters left early and that she had no intent to abandon her children or do anything that would harm them. 

Regarding her relationship with Jerry, Cheryl testified that they had been married for six years and that they correspond regularly.  Prior to their marriage, Cheryl claimed she was unaware that he was a sex offender.  Cheryl testified that she did not believe Jerry=s sex-offender status would affect his relationship with the children, that Jerry had never harmed the children, and that he Atried very hard@ to be a good father.  Cheryl also claimed that in the past, she had one or two physical fights with Jerry. On one particular occasion, Cheryl became involved in a physical altercation with Jerry and instructed J.J. to call 911.  Cheryl claimed the children were not physically harmed.  As a result of the incident, Jerry was convicted for assault. Additionally, Cheryl admitted that Jerry had never provided consistent support for the children because he had been incarcerated during most of their marriage.

Regarding her past behavior, Cheryl testified that she had a difficult upbringing, admitted that she had anger problems, acknowledged that she had made past mistakes regarding discipline of her children, and admitted to calling them names and swearing in their presence.  Cheryl admitted that she often left the children in her mother=s care because of her desire to attend drug rehabilitation; however, she admitted that she never attended.  Cheryl also testified that in 1997, she tested positive for marijuana and methamphetamine, and that marijuana had occasionally been a problem for her in the past.  According to Cheryl, she had smoked marijuana periodically since the age of sixteen.

Despite her incarceration, Cheryl maintained that she wanted custody of her children. Cheryl stated the following: AI=ve completed anger management classes.  I=veBI=ve completed twelve-step classes in which I have . . . certificates for that.  I=ve completed a leadership . . . class which teaches you how to better your . . . relationship[s] with your family and your children.  I=m on the list to be in the parenting class . . . I=m currently in a cognitive intervention class and I=m on the list for a changes class.@  Cheryl also claimed she regretted her past decisions, and stated that during her incarceration, she had attempted to improve herself.  Cheryl testified that upon her release, she would have a guaranteed full-time job, will remain sober, and wanted to start helping the children Aheal.@             

Jerry Edwards testified that at the time of the children=s removal, he was incarcerated and was not living with Cheryl.  According to Jerry, when he first met Cheryl, he informed her that he was a convicted sex offender.  Jerry also testified that he had two other children that he had not seen since they were infants.  Jerry claimed that when he was not incarcerated, he occasionally provided money to Cheryl for child support.  Jerry also maintained that he never witnessed Cheryl abuse or mistreat any of the children. Jerry further testified that his drug of choice was methamphetamine, that he had never used drugs around the children, and that he was not an addict.  Jerry also stated that he had attended counseling for sex offenders, which allegedly permitted him to be around children.

Cheryl=s Parental Rights

 Although Cheryl's appellate counsel, Keith Weiser, filed an Anders^[4] brief on her behalf, the majority fails to mention that in Weiser=s brief, he contends that a meritorious ground to consider is whether the evidence is legally and factually sufficient to support termination of Cheryl's parental rights. In support of this contention, counsel provides a comprehensive argument explaining why the evidence is legally and factually insufficient to support the court=s order terminating Cheryl=s parental rights.                                                  When a state initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.^[5]  The right of a parent to maintain custody of and raise his or her child "is an interest far more precious than any property right."^[6]  The Texas Supreme Court recognizes that a parent's interest in maintaining custody of and raising his or her child is paramount.^[7]

Sufficiency of the Evidence

Appellant argues that the evidence is insufficient to support termination of Cheryl=s parental rights. In accordance with Anders,^[8] after conducting an independent examination of the record, I conclude that the legal and factual sufficiency of the evidence are meritorious grounds to consider on appeal.  I will therefore consider whether the evidence is legally and factually sufficient to support the trial court=s order of termination.

The legal sufficiency of the evidence to support the trial court=s order of termination under section 161.001 of the Texas Family Code must first be addressed.^[9]

In reviewing a legal sufficiency claim, 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.^[10]  To give appropriate deference to the factfinder=s conclusions and the role of a court conducting a legal sufficiency review, a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.^[11]  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.^[12]  This does not mean that a court must disregard all evidence that does not support the finding.^[13]  Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.^[14] 

If, after conducting its legal sufficiency review of the evidence, a court determines that no reasonable factfinder could form a belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.^[15]  Rendition of judgment in favor of the parent would generally be required if there is legally insufficient evidence.^[16]

A trial court can terminate parental rights only if it finds that (1) a parent has committed a predicate act or omission harmful to the child, and (2) termination is in the best interest of the child.^[17]  The court must ensure that these findings are made by clear and convincing evidenceBa standard of proof specifically intended, in view of the constitutional interests at stake, to reduce the risk of erroneous terminations.^[18]  While proof of the predicate act or omission does not relieve appellees from proving the best interest of the child, the same evidence may be probative of both issues.^[19]  

The record in this case shows that the trial court relied on sections 161.001(1)(D)^[20] and 161.001(1)(E)^[21]  in support of its termination order.  The court=s order, which tracks the statutory language of sections (D) and (E), reflects that the trial court found by clear and convincing evidence that Cheryl:

5. . . . knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical and emotional well-being of the children in that CHERYL EDWARDS failed to provide adequate supervision of the children on several occasions, permitted a registered sex offender to reside in her home with the children, and engaged in physical and emotional abuse of the children. These acts resulted in physical and emotional harm to the children. 

6. . . . engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical and emotional well being of the children in that CHERYL EDWARDS failed to provide adequate supervision of the children on several occasions, permitted a registered sex offender to reside in her home with the children, and engaged in physical and emotional abuse of the children. These acts resulted in physical and emotional harm to the children. 

The court also found Aby clear and convincing evidence@ that termination of the parent-child relationship between Cheryl and her four children Ais in the best interests of the children.@^[22]

I will first address the legal sufficiency of the evidence that supports the court=s findings that Cheryl (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical and emotional well-being, and (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical and emotional well-being of the children.^[23]       

In support of the court=s order of termination, the record reflects that Cheryl (1) consumed alcohol on November 1, 2002, in violation of her probation, (2) had previously been placed on probation for injury to a child, (3) had not attended counseling despite TDPRS=s recommendation, and (4) as a result of the November 1, 2002 incident, was convicted for child endangerment.

Jerry also testified to the following: (1) he used methamphetamine; (2) he was convicted of indecency with a child; (3) he previously failed to register as a sex offender; (4) when he first met Cheryl, he informed her of his status as a sex-offender; (5)  Cheryl called J.J. a Afaggot@ and Abastard@ and she A[would] go off on anybody;@ (6) Cheryl used methamphetamine on at least two occasions; and (7) he witnessed her smoke marijuana while the children were in the upstairs area of her apartment.

Regina Williamson also testified that Cheryl had been investigated ten to fifteen times by TDPRS.  Williamson testified that past TDPRS investigations resulted in at least three findings of Areason to believe@^[24] physical abuse of the children.  She also testified that J.J. had previously told her that Cheryl had left the children at home unattended on more than one occasion.  Williamson further claimed that Jerry had also been previously investigated for physical abuse of the children which resulted in a finding of Areason to believe.@ 

Cheryl also testified that in the past, she left the children with others, used drugs, and verbally abused the children.

The undisputed evidence that does not support the trial court=s finding that Cheryl endangered the children under section 161.001(1) must also be considered.^[25] 

Sara Perry testified that on November 1, 2002, Cheryl did not appear to be under the influence of any intoxicants.  Jerry also testified that during the November 1st incident, he was incarcerated and was not living with Cheryl.  The record also reflects that Cheryl had been investigated by TDPRS on at least five different occasions for neglect, as well as physical and emotional abuse of the children.  In all of these investigations, however, TDPRS was unable to substantiate the allegations. 

Viewing this evidence in the light most favorable to the court=s findings and recognizing that the court in this case was the sole arbiter in assessing the credibility and demeanor of the witnesses, I conclude that a reasonable factfinder could form a belief or conviction that Cheryl (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical and emotional well-being, and (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical and emotional well-being.^[26]  Thus, the evidence is legally sufficient to support the court=s findings under section 161.001(1).^[27]

Next, I must evaluate the legal sufficiency of the evidence under the second prong of section 161.001, which requires that termination be in the best interests of the children.^[28]  In J.F.C.,^[29] the Texas Supreme Court listed several non-exclusive factors to consider when determining the best interest of a child:

(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 which 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.^[30]

In reviewing the legal sufficiency of the trial court=s findings regarding the children=s best interests, all the evidence previously listed in support of the finding that Cheryl endangered the children in the manner described by sections 161.001(1)(D) and (E) must be considered.^[31] 

The following undisputed evidence must also be taken into account in reviewing the court=s finding that termination was in the children=s best interests: (1) an evaluation submitted by CASA, which reflects that the children have been progressing favorably since their placement in foster care; (2) CASA=s recommendation that parental rights to all of the children be terminated; (3) Cheryl=s testimony that she often struggled financially; (4) Cheryl=s acknowledgment that Jerry never provided consistent financial support for the children; (5) Cheryl=s testimony that upon her release from jail, she would remain sober and had a guaranteed full-time job; (6) Cheryl=s testimony that she successfully completed anger management, leadership, and cognitive intervention classes; (7) evidence that showed that with the exception of J.E. and C.E., all of the children reside in separate foster centers; and (8) testimony that J.S. expressed sadness regarding his inability to see Cheryl and that he wanted to live with his mother. 

When considering all the evidence in the light most favorable to the verdict, a factfinder could reasonably form a firm belief or conviction that termination of Cheryl=s parental rights is in the best interests of the children.^[32]  I therefore conclude that the evidence is legally sufficient to support the court=s finding under section 161.001(2).

Because I have concluded that the evidence is legally sufficient to support the court=s findings under sections 161.001(1)(D) and (E), and 161.001(2), I would overrule Cheryl=s legal sufficiency challenge.

I next address whether the evidence is factually sufficient to support the court=s  order of termination under sections 161.001(1)(D) and (E).^[33] 

In reviewing a factual sufficiency challenge in a termination case, an appellate court must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.^[34]  The standard focuses on whether a reasonable jury could form a firm conviction or belief as to the truth of the allegations, thereby retaining the deference an appellate court must have for the factfinder=s role.^[35]  Appellate courts consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.^[36]  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 a challenge to the sufficiency of the evidence must be sustained.^[37]

After reviewing the entire record, while giving due consideration to the evidence discussed in the preceding paragraphs, I conclude that a factfinder could reasonably have formed a firm belief or conviction as to the truth of the allegations under sections 161.001(1)(D) and (E).^[38]  I would therefore hold the evidence is factually sufficient to support the trial court=s findings under sections 161.001(1)(D) and (E).^[39]

Finally, I address whether the evidence is factually sufficient to support the trial court=s finding that termination is in the best interests of the children.^[40]  

After reviewing the disputed evidence in light of the non-exclusive factors set forth by the Texas Supreme Court in J.F.C.,^[41] I am unable to say that a factfinder could reasonably form a firm belief or conviction that termination of Cheryl=s parental rights is in the children=s best interests.

Regarding the first, second, and third factors listed in J.F.C.,^[42] although TDPRS presented testimony at trial that the children were progressing favorably in foster care, the record reflects that TDPRS presented testimony regarding the stated desires of one child which supports that termination is not in the best interests of the children. Specifically, J.S. expressed his desire to live with his mother and testified that he was saddened because he was separated from her.  Additionally, at least one of the children had written to Cheryl during her incarceration. In light of the evidence presented as to the first, second, and third factors, the record does not favor a finding that termination is in the children=s best interests.

With respect to the fourth factor,^[43] TDPRS sought termination of Cheryl=s parental rights partly because of her alleged unsatisfactory parental abilities.  TDPRS presented evidence that the children had generally improved emotionally since their placement with foster parents. However, TDPRS failed to present specific evidence at trial related to the parental abilities of the foster parents. In contrast, Cheryl presented evidence that showed that she had worked to improve her parental abilities by attending several life-skills classes and that she had a guaranteed full-time job upon her release from jail.  The probative value of the disputed evidence presented by both sides regarding the fourth factor weighs against a finding that termination is in the children=s best interests.

In regard to the fifth factor,^[44] TDPRS presented testimony that the children had progressed mentally and emotionally while in foster care.  TDPRS, however, did not present any evidence as to the programs available to assist with promoting the children=s best interests while in foster care.  In contrast, the record reflects that Cheryl was enrolled in several programs to assist her in promoting the children=s best interests. Specifically, at the time of trial, she was enrolled in life-skills courses for the sole purpose of improving herself as a parent, and was also on the waiting list for other parenting classes. The evidence as to the fifth factor therefore militates in favor of a finding that termination is not in the best interests of the children.

Regarding the sixth and seventh factors,^[45] Cheryl testified that she would have a full-time job upon her release from jail, which she claimed would enable her to provide support to the children.  In contrast, TDPRS presented testimony to support its argument that the children should remain in foster care.  However, none of this testimony addressed future plans for the children or discussed the stability of the proposed placement for any of them. TDPRS offered evidence as to whether, once Cheryl=s rights were terminated, it would attempt to place all the children together.  Given the placement of the children at several locations, it appears unlikely that TDPRS would be able to reunite the siblings at a single home.  There was no testimony regarding the opportunity for adoption of the children. As TDPRS offered no evidence regarding its plan for permanent placement of the children, it is as likely as not that the children will remain in long-term foster care or even be permanently separated if Cheryl=s rights are terminated.  This likelihood weighs strongly against a finding that termination is in the children=s best interests.

Finally, as to the eighth and ninth factors,^[46]  TDPRS presented testimony at trial in support of its argument that Cheryl failed to provide adequate supervision during the incident.  Specifically, Officer Branecky and Sara Perry claimed that on the night of November 1, 2002, Cheryl had left her children unattended.  As justification for her acts that night, Cheryl claimed that she paid babysitters to care for the children, and that it was only upon her arrival home that she learned that the children were left unattended. She also testified that she was sorry for her irresponsible actions both in the past and on the night in question. Cheryl claimed that when she is released from jail, she will remain sober.  She also expressed a strong desire to retain custody of all of the children.  

In consideration of the constitutional interests at stake and in light of the non-exclusive factors set forth in J.F.C.,^[47] the record establishes that as to each factor, the disputed evidence is so significant that a reasonable factfinder could not have formed a firm belief or conviction that termination of Cheryl=s parental rights was in the best interests of the children.^[48]  I therefore conclude that the evidence is factually insufficient to support the trial court=s order terminating Cheryl=s parental rights.^[49]  Accordingly, I would sustain Cheryl=s factual sufficiency challenge.

Conclusion

Having fully stated and considered the issues presented on appeal, I respectfully concur in part and dissent in part with the majority.  I concur with the majority=s decision to affirm the court=s order terminating Jerry=s parental rights. However, because the evidence is factually insufficient to support termination of Cheryl=s parental rights, I would reverse the court=s order terminating her parental rights and remand the cause for a new trial to determine Cheryl=s parental rights.

      LINDA REYNA YAÑEZ,

       Justice

Concurring and dissenting memorandum opinion

delivered and filed this the 13th day of April, 2006.

---

^[1]  See In re A.M.C., 2 S.W.3d 707, 710 (Tex. App.BWaco 1999, no pet.).

^[2]  Jerry acknowledged that he was convicted for indecency with a child.  According to Jerry, one day he was sitting inside his home, near a front window.  During that time, two women and a child were walking on a sidewalk past his home. According to Jerry, shortly thereafter, the women wrongfully accused him of Amasturbating in the window.@

^[3]  At the time of the November 1, 2002 incident, Cheryl was on deferred adjudication probation for injury to a child. According to Cheryl, the injury to a child charge arose in February 2002, because J.J. refused to walk up the apartment stairs.  Consequently, Cheryl admitted that she grabbed J.J. by his shirt and Abooted him with [her] foot . . . and told him to get on up@ the stairs.  As a result, Cheryl was charged with injury to a child and was subsequently placed on deferred adjudication probation.

^[4] 386 U.S. 738, 738 (1967).

^[5]  See In the Interest of J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). 

^[6]  See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (citing Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)). 

^[7] See id. 

^[8]  386 U.S. 738, 738 (1967).

^[9] See Tex. Fam. Code Ann. _ 161.001 (Vernon 2002).

^[10] In the Interest of J.F.C., 96 S.W.3d at 265-66.

^[11]  See id. at 266.

^[12]  See id.

^[13]  See id.

^[14] See id. 

^[15]  See id.

^[16]  See id.

^[17]  See Tex. Fam. Code Ann. _ 161.001 (Vernon 2002). 

^[18]  In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003).

^[19] In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 

^[20]  See Tex. Fam. Code Ann. _ 161.001(1)(D) (Vernon 2002).

^[21]  See id. _ 161.001(1)(E).

^[22]  See id. _ 161.001(2).

^[23]  See id. _ 161.001(1)(D), (E). 

^[24] According to Williamson, Areason to believe@ is a term used by TDPRS when investigations Avalidate that . . . abuse happened.@

^[25] See Tex. Fam. Code Ann. _ 161.001(1)(D), (E) (Vernon 2002); In the Interest of J.F.C., 96 S.W.3d at 266.

^[26]  See Tex. Fam. Code Ann. _ 161.001(1)(D), (E) (Vernon 2002).

^[27] See id.

^[28] See id. _ 161.001(2).

^[29]  In the Interest of J.F.C., 96 S.W.3d at 261-62.

^[30]  See id.

^[31]  See Tex. Fam. Code Ann. _ 161.001(1)(D), (E) (Vernon 2002); In the Interest of J.F.C., 96 S.W.3d at 266.

^[32]  See Tex. Fam. Code Ann. _ 161.001(2); In the Interest of J.F.C., 96 S.W.3d at 266.

^[33]  See Tex. Fam. Code Ann. _ 161.001(1)(D), (E) (Vernon 2002).

^[34]  In the Interest of J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d at 25).   

^[35]  In re C.H., 89 S.W.3d at 26.

^[36]  In the Interest of J.F.C., 96 S.W.3d at 266.

^[37]  See id.

^[38]  See Tex. Fam. Code Ann. _ 161.001(1)(D), (E) (Vernon 2002); In the Interest of J.F.C., 96 S.W.3d at 266.

^[39] See Tex. Fam. Code Ann. _ 161.001(1)(D), (E) (Vernon 2002).

^[40]  See id. _ 161.001(2).

^[41]  For reference purposes above, the factors set forth and numbered in J.F.C. are as follows:

(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 which 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.

In the Interest of J.F.C., 96 S.W.3d at 261-62.

^[42] See id.

^[43] See id.

^[44]  See id.

^[45] See id.

^[46]  See In the Interest of J.F.C., 96 S.W.3d at 261-62.

^[47]  See id.

^[48]  See Tex. Fam. Code Ann. _ 161.001(2) (Vernon 2002); In the Interest of J.F.C., 96 S.W.3d at 266.

^[49] See Tex. Fam. Code Ann. _ 161.001(2) (Vernon 2002).