in the Interest of J.S., M.N.S.C, and T.S. ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-279-CV
IN THE INTEREST OF J.S.,
M.N.S.C., AND T.S.,
CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant N.S. appeals the trial court’s order terminating her parental
rights to her children, J.S. (John), M.N.S.C. (Mary), and T.S. (Tom).2 In two
1
… See T EX. R. A PP. P. 47.4.
2
… We are using fictitious names in accordance with proposed T EX. R.
A PP. P. 9.8, 71 T EX. B.J. 287-88 (Tex. 2008, scheduled to take effect Sept. 1,
2008).
issues, appellant argues that the evidence is legally and factually insufficient to
support the trial court’s best interest finding. We affirm.
Background Facts
On February 24, 2006, appellant took her two-and-a-half-year-old
daughter Mary to the emergency room because she had stopped breathing.
Appellant told doctors that Mary had fallen off the bed and that she might have
consumed dish soap. Doctors, however, believed that Mary was intentionally
injured due to her numerous, severe injuries. Dr. Steven Perilman, the pediatric
emergency physician at Cook Children’s Hospital who examined her, testified
that she had left-sided phoresis, a condition which caused the left side of her
body to be noticeably weaker compared to the other side. Mary also had a
subdural hematoma, which was life-threatening and required emergency
surgery. The subdural hematoma was putting enough pressure on her brain to
cause her right eyelid to not open properly, a condition known as ptosis, which
caused a loss of consciousness. If symptoms such as ptosis persisted, swelling
and pressure on the brain would push on the brain stem and stop the
cardiorespiratory part of the brain. During Mary’s emergency brain surgery,
doctors also discovered a previous head injury. Doctors believed that Mary’s
brain bleed was caused by shaking.
2
Additionally, Dr. Perilman testified that Mary had a small bruise on her left
chin, a bruise on the midline of her lumbar spine area, a very severe diaper rash
that caused the outer layer of her skin to burn, intraoral burns, burned tonsils,
white-coated ulcers on both sides of her soft pallet, swollen lips, and fractures
on the middle and ring fingers of her left hand. On February 27, 2006, TDFPS
removed Mary from appellant’s care as well as her four-year-old brother, John. 3
Detective Wayne Goodman with the North Richland Hills Police
Department arrived at the hospital after Mary’s surgery to investigate. He
spoke with appellant who claimed that Mary had fallen out of bed and had
consumed dish soap. After Detective Goodman explained to appellant that
Mary’s injuries were inconsistent with her explanation, appellant blamed her
live-in boyfriend Mark McBride. 4 However, when Detective Goodman
interviewed appellant again on March 27, 2006, she told him that McBride had
nothing to do with the injuries, and she reiterated her initial explanation.
At the time of the incident, appellant lived with McBride, her two children
Mary and John, and McBride’s adult daughter, Allison. Appellant told Detective
Goodman that McBride got up with the children around 6:00 a.m. and took care
3
… John was diagnosed with cerebral palsy at the age of one and a half.
4
… McBride was incarcerated at the time of trial.
3
of them until she woke up around 11:00 a.m. Appellant stated that McBride
left the home but later returned. Sometime in the afternoon, Mary began to
vomit and have uncontrollable diarrhea. When Mary became limp, appellant
took her to the emergency room. Detective Goodman was unable to eliminate
appellant, McBride, or Allison as the person responsible for Mary’s injuries.
TDFPS placed Mary with foster parents, D.S. and C.C., as soon as she
was released from the hospital. D.S. testified that Mary’s condition was
shocking. Mary was inconsolable and cried for five days. She was very frail
and in pain; D.S. also said that Mary’s diaper rash was horrid and that she
could not make her comfortable. D.S. also testified that, at the time of trial,
Mary was doing miraculous despite the fact that she still had a lot of pain in her
head and had nosebleeds every night. D.S. stated that Mary needed a
structured environment and learned by repetition. Mary threw tantrums easily
if disrupted and had difficulty expressing herself although her vocabulary had
doubled. Additionally, Mary would need another surgery on her skull, and
because she was susceptible to injury, she wore a helmet when playing outside.
D.S. testified that John arrived in their home three days after Mary.
Although John was four years old, he was still in diapers and ate with his
fingers. He crawled with his fingers tucked under his knuckles and did not have
the balance or coordination to stand by himself. At the time of trial, John was
4
potty-trained. John had also learned to crawl properly and had been fitted with
leg braces. He had progressed to a walker and was also fitted for a brace on
his right hip. Additionally, John wore special splints at night. He had also
learned to eat with a fork and spoon and was in speech therapy.
D.S. also testified that John tried to avoid visits with appellant. For
example, he had learned how to ask to go to the bathroom to escape spending
time with appellant. He also experienced anxiety and panic attacks. For
example, he experienced anxiety about going to school, and D.S. had to
reassure him that she would return to pick him up.
Additionally, D.S. testified that John had acted out sexually. For
example, D.S. discovered her adopted son lying on John’s bed with his pajamas
off while John was playing with his foster brother’s penis, calling it a “shooter.”
After this incident, D.S. contacted the caseworker, filed a report, gave the boys
separate bedrooms, and monitored their activities with an open door policy.
D.S. also testified that once when she and John were in the car, John told her
that Daddy Mark had a big shooter and that he had a little shooter. John told
her that Daddy Mark would touch him with his big shooter, touch his bottom
with his big shooter, and urinate on him.
Shirley Poeck, John’s therapist, testified at trial that she had been
counseling John since January 2007. John began counseling after he acted out
5
sexually with his foster brother and because of anxiety over the safety of his
siblings. John called his siblings “my children,” and he felt like he was their
protector. For example, John wanted to know how to use a telephone because
he wanted access to grown-ups things, which gave him a sense of being able
to protect his siblings. Poeck testified that she believed John had been sexually
abused because of the actions he had demonstrated. John also did not want
to go to visitation with appellant, and he had anxiety about it. Poeck testified
that she believed it was in John’s best interest to remain with his foster family.
While Mary and John were living with their foster family, appellant had
another child, Tom.5 TDFPS did not know about Tom’s birth until twelve days
after he was born; TDFPS then removed Tom and also placed him with D.S.
and C.C. D.S. testified that Tom was developmentally delayed and, at the time
of trial, was receiving occupational and physical therapy twice a week. D.S.
also testified that she and C.C. would like to adopt all three of the children.
Jessica Puryear, the TDFPS caseworker assigned to this case, testified
that appellant had worked her services, but she still had concerns about
appellant’s ability to parent. Appellant’s service plan included parenting
5
… Tom’s father is McBride, and he executed an affidavit of
relinquishment.
6
classes, anger management, individual therapy, and a psychological evaluation;
appellant completed all of these services.
Additionally, Puryear also asked appellant to educate herself about
cerebral palsy and shaken baby syndrome, which appellant did. Appellant
regularly visited the children, and Puryear stated that on most occasions she did
well with the visits and acted appropriately. Although appellant struggled with
balancing the children’s needs when all three children were present, she tried
to apply what she had learned in the parenting classes. For example, appellant
brought the same toys to visits each week to establish consistency.
Appellant also maintained steady employment. She worked at Man’s Best
Friend from July 2006 until recently when she got a new job as a restaurant
hostess in downtown Dallas. Initially, appellant lived in Tarrant County, but she
moved to Dallas to be closer to her new job and the location of the visitations.
Puryear also testified that appellant was good about staying in touch with her.
Although appellant had learned some parenting skills, she could not provide
TDFPS with a clear plan on how to meet the children’s medical and physical
needs. For example, appellant did not have beds or rooms for them when
Puryear last visited appellant’s apartment.
Although appellant worked her service plan, Puryear recommended that
appellant’s parental rights be terminated because of the number of injuries Mary
7
sustained, the uncertainty regarding who caused the injuries, and the amount
of neglect experienced by the children.
Susan Chapman, a supervisor at Child Advocates of Tarrant County,
testified that it was inconceivable that appellant did not know about Mary’s
injuries. She stated that appellant committed the injuries herself or was in the
house when the injuries occurred because Mary would have been screaming.
Chapman attended visitations and stated that appellant usually brought her
mother and her sister with her. Normally, appellant’s mother or sister would
feed Tom, but sometimes appellant would also feed him. She testified that
appellant did engage with the children, but her role was passive. Chapman also
said that the children interacted and were attached to their foster family.
Chapman recommended that appellant’s parental rights be terminated and that
it was in the children’s best interests to stay with the foster family.
The termination bench trial was held on July 17 through 19, 2007.
Nancy McNeil, a pediatric nurse practitioner who worked at a specialty clinic for
foster children, testified that she first saw John on March 10, 2006. She
testified that John had significant gross motor delays because of his cerebral
palsy, which affected his legs. At that time, John was four years old and not
walking, and he could not go from a kneeling position to crawling or sitting up
by himself, which children usually accomplish at nine months. John was also
8
unable to use his arms effectively like a toddler, and he did not have the ability
to pull himself on a toy or pull his legs up so that he could ride a toy or truck.
Although John was articulate, McNeil testified that he was actually only
repeating what others said without understanding.
McNeil last saw John on February 2, 2007, and she testified that he had
made great strides with his physical development. He was in physical and
occupational therapy and had received Botox injections to help with his
mobility. Additionally, he used a walker and had a motorized wheelchair; John
also had braces and could stand by himself. John’s language skills had also
improved greatly.
McNeil first saw Mary on March 3, 2006, and she was below the third
percentile for weight. At the time of trial, however, she was above the twenty-
fifth percentile and had grown rapidly. Because of Mary’s surgery, her skull
plate was gone, so she had no protection on that area of her head. Any
roughhousing or swinging was discouraged because if she hit her head, it would
be dangerous. McNeil did not know the extent of the damage due to the brain
hemorrhage; doctors would have to continue to monitor her.
McNeil saw Tom when he was two weeks old, and she felt that he had
not gained the appropriate amount of weight for a newborn. However, Tom
had steadily gained weight since being with the foster family.
9
McNeil testified that the children were getting loving care in their foster
home; they were bonded to the foster parents and had a warm attachment to
them. They were happy, thriving, and well-behaved. McNeil testified that it
was in the children’s best interest that they remain together in the foster home.
Appellant, who was twenty-two at the time of trial, testified that she
became pregnant with John when she was sixteen years old. 6 When John was
one year old, appellant met M.C. on the Internet; appellant left John with her
mother for six to nine months so that she could work and save money to move
in with M.C. Appellant saved money and she, John, and M.C. then lived
together in Missouri. Appellant and M.C. had Mary in 2004. Appellant testified
that M.C. was physically, emotionally, and sexually abusive; he choked her and
left bruises on her arm. In September 2005, appellant met McBride at a
Cracker Barrel, where she was working at the time, and he helped her get away
from M.C. She testified that she knew McBride had a criminal background, but
she did not know the specifics. McBride and appellant moved to Texas with
John and Mary.
6
… Appellant testified that John’s father, N.J., was verbally abusive and
that she never lived with him. She did not know where N.J. was located. N.J.
was not present at trial.
10
Appellant testified that on February 24, 2006, she was at home with her
children. McBride was also home on and off that day, and he told her that
Mary was fine when she woke up. Appellant said she did not notice that Mary
was sick until later in the day when she started vomiting and having diarrhea.
Mary became cold and then stopped moving or breathing, so appellant took her
to the emergency room. Mary had not been crying until she began to vomit.
Appellant testified that she had no idea what happened to Mary. She also
stated that she knew about Mary’s diaper rash but that she did not have any
money or a car to take Mary to a clinic. She testified that it bothered her that
she did not know who hurt her daughter.
Appellant testified that she was dating someone, but she had not told
TDFPS. She said that she would not allow any men around her children. She
stated that her boyfriend gave her a car to use.
Appellant also testified that she helped TDFPS get Mary’s medical records
from Missouri. John went to therapy in Missouri, but not after they moved to
Texas because she did not have a car or control over anything. She said that
she did John’s exercises with him at home. Before her children were removed,
she had contacted Scottish Rite Hospital to get therapy for John.
Appellant completed parenting classes, anger management classes, and
regularly visited her children. She testified that she was better equipped to
11
provide a safe and stable home for her children. Appellant stated that she
wanted to go back to school and have someone come into her home and teach
her the physical therapy that John needed. She wanted to take them to school,
and she would adjust her work schedule. She also stated that she wanted to
go to family counseling. Appellant testified that she visited a therapist once a
week, had worked on her issues with men, and had learned to identify signs of
an abusive relationship. She had learned to not be dependent on anyone else.
Although appellant was not working at the time her children were
removed, she got a job at Man’s Best Friend, which was a kennel and dog
training facility. She worked there for a year, but she left in April 2007 so she
could move to Dallas to be closer to visits. Appellant testified that she had a
job as a hostess at a restaurant in downtown Dallas. She stated that she
worked forty hours a week for ten dollars an hour. She had a two-bedroom
apartment in Dallas. At the time of trial, appellant testified that her mother and
her sister were living with her, but her sister would be moving out in the next
week. Appellant testified that she was the primary person who paid the bills.
Carol Lennox, appellant’s therapist, testified that she had been seeing
appellant since March 30, 2006, and she believed appellant had made amazing
progress. Lennox also testified that appellant had been consistent and
cooperative, maintained employment, and completed parenting classes and
12
anger management classes. She stated that appellant’s dedication to therapy
was unusual.
Lennox stated that she was not aware of appellant’s living situation, but
she believed that appellant was capable of providing a safe home for her
children and that appellant was not the same person she was a year ago.
Additionally, Lennox testified that she and appellant discussed appellant’s abuse
as a child by appellant’s mother’s live-in boyfriend.
Although Lennox was aware that Mary’s perpetrator was not
ascertainable, she did not believe that appellant’s parental rights should be
terminated because she had made progress rarely seen and showed tremendous
concern for her children. She and appellant had discussed several options such
as John’s returning to appellant while the younger children could be adopted by
the foster parents. Lennox testified that this was better than termination
although she agreed it was not good for the children to be separated. She also
testified that they had discussed open adoption, which would allow appellant
to see her children once a month unsupervised.
Mila J., Mary’s paternal grandmother who lived in Hot Springs Village,
Arkansas, testified that appellant called her in February 2006 and told her that
Mary was in the hospital and that TDFPS had taken John. Mila had not heard
from or seen appellant or her grandchild since appellant left M.C. in September
13
2005. Appellant had emailed Mila, but Mila did not know where they were.
Mila testified that she was close to John and Mary and that she was concerned
about John when he was not walking at two and a half. She had witnessed
appellant and M.C. doing exercises with John and knew that John had leg
braces.
TDFPS gave Mila and her husband, Buford, permission to visit the children
in March 2006. They then contacted a lawyer in July or August 2006 to try
to get custody of Mary.7 However, Mila testified that she and her husband had
established a bond with the foster family as had the children, and she did not
think it was in the children’s best interest for them to be separated.
After a three-day bench trial, the trial court determined that appellant (1)
knowingly placed or knowingly allowed her children to remain in conditions
which endangered their physical and emotional well-being, (2) engaged in
conduct or knowingly placed her children with persons who engaged in conduct
which endangered their physical or emotional well-being, and that (3)
termination was in their best interest. 8 See T EX. F AM. C ODE A NN.
7
… Mila and Buford filed a suit in intervention for access to Mary if M.C.’s
and appellant’s parental rights were terminated. The trial court granted them
reasonable visitation.
8
… The trial court also terminated N.J.’s parental rights to his son John,
M.C.’s parental rights to his daughter Mary, and McBride’s parental rights to his
14
§§ 161.001(1)(D), (E), (2) (Vernon Supp. 2007). Appellant timely filed this
appeal.
Statement of Points
As a preliminary matter, we address the State’s contention that
appellant’s issues in her statement of points and motion for new trial are too
vague and lack specificity. Section 263.405(i) of the Texas Family Code
provides,
The appellate court may not consider any issue that was not
specifically presented to the trial court in a timely filed statement
of the points on which the party intends to appeal or in a statement
combined with a motion for new trial. For purposes of this
subsection, a claim that a judicial decision is contrary to the
evidence or that the evidence is factually or legally insufficient is
not sufficiently specific to preserve an issue for appeal. 9
The relevant portions of appellant’s combined motion for new trial and
statement of points allege that the evidence is legally and factually insufficient
to support the trial court’s findings: (1) that she knowingly placed or knowingly
allowed her children to remain in conditions or surroundings which endangered
their physical or emotional well-being, (2) that she engaged in conduct or
son Tom. None of them have appealed the trial court’s order.
9
… T EX. F AM. C ODE A NN. § 263.405(i) (Vernon Supp. 2007); see also In
re S.B., 207 S.W .3d 877, 881 (Tex. App.—Fort Worth 2006, no pet.); In re
D.A.R., 201 S.W.3d 229, 230 (Tex. App.—Fort Worth 2006, no pet.) (both
analyzing this statute).
15
knowingly placed her children with persons engaged in conduct which
endangered their physical or emotional well-being, and (3) that termination of
the parent-child relationship was in John’s, Mary’s, and Tom’s best interest.
Here, appellant’s statement of points identifies the challenged trial court’s
findings, outlines the elements of those findings, and raises legal and factual
insufficiency claims. Thus, appellant’s statement of points was specific enough
to allow the trial court to correct any erroneous findings on the challenged
grounds. In re J.W.H., 222 S.W.3d 661, 662 (Tex. App.—Waco 2007, no
pet.); In re A.J.H., 205 S.W.3d 79, 80 (Tex. App.—Fort Worth 2006, no pet.).
We therefore address appellant’s legal and factual sufficiency challenges to the
best interest finding.10
Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59,
102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
While parental rights are of constitutional magnitude, they are not absolute.
10
… Even though appellant raised sufficiency challenges to the trial court’s
endangerment findings in her combined motion for new trial and statement of
points, on appeal she challenges only the legal and factual sufficiency of the
evidence to support the trial court’s best interest finding.
16
Just 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. In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the State seeks not just
to limit parental rights but to end them permanently—to divest the parent and
child of all legal rights, privileges, duties, and powers normally existing between
them, except for the child’s right to inherit. T EX. F AM. C ODE A NN. § 161.206(b)
(Vernon Supp. 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We
strictly scrutinize termination proceedings and strictly construe involuntary
termination statutes in favor of the parent. Holick, 685 S.W.2d at 20-21; In re
E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
17
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined 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.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
A. Legal Sufficiency
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
18
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
B. Factual Sufficiency
In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the termination of the parent’s parental rights would
be in the best interest of the child. C.H., 89 S.W.3d at 28. If, in light of the
entire record, the disputed evidence that a reasonable fact-finder 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 in the truth of its finding,
19
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. If we
reverse on factual sufficiency grounds, then we must detail in our opinion why
we have concluded that a reasonable fact-finder could not have credited
disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266-67.
Applicable Law
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include:
(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;
20
(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.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Analysis
A. Desires of the children
At the time of trial, John was five years old, Mary was three years old,
and Tom was eight months old. Caseworker Puryear testified that most of the
time, the children were excited to see appellant. Foster parent D.S testified
that Mary enjoyed seeing appellant because appellant brought food to the visits,
and Mary liked to eat. Puryear also testified that the children were bonded with
appellant. Appellant testified that John asked her if he could come live with her
when he was bigger. However, D.S. testified that she had never heard John
21
tell appellant that he wanted to live with her. Instead, she testified that John
had anxiety and panic attacks before visitations and that he tried to get out of
visiting with appellant. In the two weeks before trial, John would scream for
an hour on the days that he had visits with appellant. Chapman testified that
during the last visit between appellant and the children, she could tell that John
was upset and did not want to be there. She stated that John was very
anxious and wanted to leave. Appellant tried to give John some money to
divert his attention, which briefly calmed him down, but he left the visiting
room as soon as the visit was over.
John’s therapist Poeck also testified that John did not want to attend
visits and that he had increased anxiety about going to visits with appellant;
further, John had started to have stomach aches, which indicated his anxiety
about visiting his mother had become physical and not just behavioral.
Additionally, when he was at a visit, John would look for his foster mother, and
if he could not hear or see her, he would have to go find her, which was a form
of separation anxiety. Poeck also testified that John had never said anything
to her to make her think he was bonded with appellant, and she believed John
could move on without appellant because he had become strongly bonded to
his foster family. Poeck stated that John needed closure so that his separation
anxiety would not get worse.
22
There is also evidence that John would like to be adopted by his foster
family. D.S. testified that when she and her partner adopted their other two
children, they celebrated a “Forever Day” to signify the day the child was
brought into their family. They took a “Forever Day” photograph so that their
children would remember the day they became a part of their loving family.
D.S. testified that John had asked for a “Forever Day” photograph on many
occasions.
The evidence shows that John was not benefitting from visits with
appellant. Additionally, it would be detrimental to the children, and especially
John, if they were separated. Further, it was in the children’s best interest to
stay together in their current environment because they had bonded with their
foster family.
B. The emotional and physical needs of the children now and in the future, and
the emotional and physical danger to the children now and in the future
The evidence demonstrates that Mary had suffered numerous intentionally
inflicted injuries, the most severe of which was a subdural hematoma that
required emergency brain surgery. In addition, Mary had bruises on her chin
and back, burns in and around her mouth, burned tonsils, ulcers, and a severe
diaper rash. Doctors also discovered untreated past injuries that were likely
caused by shaking, and the surgery left a portion of her skull unprotected.
23
Additionally, Mary was underweight and had problems eating. For example,
she would continue to eat until she was sick. At the time of trial, although
Mary had nightly nosebleeds and headaches, she had grown and was doing
great physically and emotionally.
John has cerebral palsy, which had been untreated and caused significant
developmental delays. When John was first removed, he was barely mobile,
in diapers, could not use his arms effectively, and could not dress or feed
himself; however, since being with his foster family, John had been potty
trained, could walk with the assistance of braces and a walker, and could feed
and dress himself. John had also received speech, physical, and occupational
therapies and made great strides in his physical development. There is also
evidence that John was sexually abused.
TDFPS did not know appellant was pregnant with Tom until August
2006, and appellant did not tell her caseworker when Tom was born in
November 2006. Before being removed, Tom had not gained weight, and
pediatric nurse McNeil was concerned that appellant had not sought prenatal
care. Appellant’s therapist Lennox, however, testified that she thought
appellant had received prenatal care. TDFPS removed Tom because he was at
risk due to the severe neglect of John and the injuries to Mary. Since living
with the foster family, Tom had not encountered any weight issues.
24
The evidence shows that appellant had maintained adequate housing and
steady employment. Appellant initially lived and worked in Tarrant County, but
she moved to Dallas after finding a better job and to be closer to visits with her
children. Puryear testified that she knew appellant had gotten a new job in
Dallas but did not know that she had moved until she read Lennox’s report in
June. At the time of trial, appellant lived in a two bedroom apartment in Dallas
with her mother, sister, and sister’s baby. Although the apartment was not
dirty when Puryear visited, she testified that there were no beds set up for the
children and that medication was within John’s reach. Appellant, however,
testified that she had two twin beds and a baby bed for her children. Puryear
did not believe appellant’s home was ready for children based on the condition
of her apartment. The evidence also shows that appellant paid her bills and had
reliable transportation.
TDFPS was also concerned about appellant’s mother living with her
because appellant’s mother continued to live with appellant’s abuser after
learning about the abuse. However, appellant confronted her mother, and
appellant testified that her mother was not a danger to her children.
C. The parental abilities of the individuals seeking custody, and the programs
available to assist these individuals to promote the best interest of the children
25
The evidence demonstrates that appellant worked her service plan.
Appellant completed parenting classes, anger management classes, individual
therapy, and a psychological evaluation. Lennox testified that appellant
attended individual therapy sessions regularly, was diligent about working on
her personal issues, and had accepted responsibility for her children’s injuries
and neglect.
Nichelle Wiggins performed a psychological evaluation on May 9, 2007.
Wiggins testified that appellant had a low/average IQ; appellant could learn new
information, but it might take her extra time. Appellant’s reading and spelling
skills were at a high school level, and math was her weakness. Wiggins also
testified that appellant had maintained employment for the past nine months,
was seeking help for her depression, and never had an alcohol or drug abuse
problem. Wiggins stated that appellant had major dependency issues, was
passive, and tended to get involved with men who were abusive. She also
testified that appellant had poor self-esteem and a dependent personality
disorder. Wiggins noted that appellant displayed significant symptoms that
required treatment, but she was still able to function; she testified that
appellant needed psychiatric intervention and counseling. Additionally, Wiggins
said it was a strength that appellant had been consistently going to counseling.
However, one of her concerns was that appellant became involved in
26
relationships that were destructive and led to poor decision making. Wiggins
also testified that she was concerned about appellant’s ability to protect her
children in the future and accept responsibility for maintaining their safety.
Appellant’s dependency issues and history of abusive relationships were also
concerns for Wiggins. As of the date of appellant’s evaluation, Wiggins
thought the children should remain in protective care.
The record shows that appellant had a history of abusive relationships,
which caused TDFPS concern that she would enter into future unhealthy
relationships. Additionally, appellant did not tell TDFPS about her relationship
with her new boyfriend, Allen B., which appellant should have realized was an
important issue about which TDFPS needed to be informed. Although Lennox
knew of the relationship, she testified that she did not believe appellant was at
risk to become involved in another harmful relationship.
The record contains evidence that Lennox believed appellant had made
significant progress and had the ability to parent her children. Puryear and
Chapman, however, disagreed with Lennox’s evaluation and believed
appellant’s parental rights should be terminated. The trial judge as fact-finder
was free to assess the credibility of Lennox, Puryear, and Chapman. See
J.P.B., 180 S.W.3d at 573.
27
The record also demonstrates that appellant regularly visited her children
and applied the skills that she had learned in the parenting classes. However,
John was anxious about visitations and avoided spending time with appellant.
Although appellant completed all of her services, TDFPS was not able to
recommend returning the children to appellant because of the extent of Mary’s
injuries and John’s medical neglect. Furthermore, appellant had not provided
TDFPS with a plan on how to meet the children’s medical needs in the future.
D. The plans for the children by these individuals or by the agency seeking
custody, and the stability of the home or proposed placement
Regarding future plans for the children, TDFPS’s goal was to have the
foster family adopt all three children. D.S. testified that she and C.C. would
like to adopt the children and that they considered John, Mary, and Tom part
of their family. Mary’s grandparents, Mila and Buford, who had filed a suit in
intervention, decided to not pursue custody of Mary after seeing how happy
she was with the foster family. Mila testified that it was best for the children
to remain together. In addition, Mila and Buford had established a bond with
the foster family; D.S. testified that the they had become D.S.’s and C.C.’s
pseudo-parents and visited often.
Appellant did not provide TDFPS with any other relatives as placements.
28
E. The acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one, and any excuse for the acts or
omissions of appellant
As for the parent-child relationship, there is evidence that John felt that
he was the protector of his siblings and often referred to them as his children.
John had gradually let go of his protector role since being with his foster family
although he still worried about Mary and Tom when they were not with him.
John had worried about Tom before he was removed.
The evidence demonstrates that appellant claimed that she did not know
who caused Mary’s injuries nor did she appear appropriately concerned for Mary
at the hospital. However, Chapman testified that Mary would have been
screaming when the injuries occurred so appellant’s testimony that she did not
know who or how the injuries were caused is doubtful. Additionally, appellant
stated that Mary’s head trauma could have been caused by falling off the bed,
but doctors explained that Mary’s head injury was the type of injury that was
the equivalent of falling from a two-story building. Appellant also stated that
Mary might have consumed dish soap, but the doctors believed the intraoral
burns were caused by being force fed hot food or by a chemical burn.
Appellant explained Mary’s broken fingers by claiming that John had pushed a
toy truck over Mary’s hand and then sat on the truck. However, pediatric nurse
McNeil, who examined John immediately after he was removed, testified that
29
she doubted that John would have had the physical ability to pull himself onto
a toy truck. D.S. also testified that when John first came to live with her
family, he could not pull himself onto a chair or toy because he lacked the upper
body strength. Thus, appellant’s explanations for Mary’s injuries were highly
unlikely.
Additionally, appellant’s story regarding the whereabouts of McBride on
February 24, 2006, were inconsistent although she had always stated that she
was at home. Appellant told psychologist Wiggins that she thought McBride
may have injured Mary, but at the time of that interview, appellant still lived
with him. Appellant also did not know if McBride’s daughter Allison was
responsible for Mary’s injuries, and appellant continued to live with her for a
short time after the children were removed. Appellant also failed to tell Wiggins
about Mary’s additional injuries. Wiggins testified that appellant knew that
TDFPS could terminate her parental rights, so she was not surprised that
appellant was not forthright.
Moreover, appellant did not appear to understand the seriousness of
Mary’s injuries before or after her children were removed. For example,
appellant and her mother would swing Mary around during visits, which was a
dangerous activity because of the unprotected area on her head.
30
The evidence also shows that appellant did not secure the appropriate
medical equipment or therapy for John. There is evidence that John had leg
braces and received therapy in Missouri, but appellant failed to continue these
services when she moved to Texas with McBride, which caused John’s
development to regress significantly.
In sum, the record demonstrates that although appellant diligently
completed her services, the severity of Mary’s injuries, TDFPS’s uncertainty as
to the identity of the person or persons who inflicted the injuries, along with
appellant’s continued failure to grasp the severity of those injuries, her denial
of the intent and nature of the injuries, her failure to inform TDFPS of her new
boyfriend, and the intentional neglect of the children, all demonstrate that it
was in John’s , Mary’s, and Tom’s best interests that appellant’s parental rights
be terminated. See T EX. F AM. C ODE A NN. § 161.001(2).
Viewing all the evidence in the light most favorable to the judgment, we
hold that the evidence is legally sufficient to support the trial court’s finding
that termination of appellant’s parental rights was in the children’s best interest.
See id. Viewing the same evidence in a neutral light, we hold that it is also
factually sufficient to support the trial court’s findings that termination of
appellant’s parental rights was in the children’s best interest. See id. We
overrule appellant’s two issues.
31
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment terminating appellant’s parental rights to John, Mary, and Tom.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, HOLMAN, and GARDNER, JJ.
DELIVERED: June 5, 2008
32