in the Interest of B.L.M., S.B.M., R.A.M., J.W.M.M., J.P.B.R., and L.S.S.R. ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-214-CV
IN THE INTEREST OF B.L.M.,
S.B.M., R.A.M., J.W.M.M.,
J.P.B.R., AND L.S.S.R.
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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This is a parental-rights termination case concerning six children.
Appellant Bobbie H.—the biological mother of the children—challenges the legal
and factual sufficiency of the evidence to support the jury’s section 161.001(1)
and best-interest findings. Appellants Minnie B. and Rudolph B., pro
se—Bobbie’s mother and her husband—challenge the legal and factual
sufficiency of the evidence to support the jury’s findings that Minnie and
1
… See T EX. R. A PP. P. 47.4.
Rudolph should not be named managing conservators of two of the children or
possessory conservators of any of the six children. We affirm.
I. Background
The following summary of the evidence will put the issues into context.
We will discuss the evidence in greater detail later in this opinion as it pertains
to the individual issues.
Bobbie is twenty-eight years old and the mother of six children: twins
B.M. and S.M., age eight; R.M., age five; J.M., age four; J.R., age three; and
L.R., age two.2 School teachers, daycare workers, and medical professionals
made at least ten reports concerning the children’s welfare to the Department
of Family and Prospective Services (“the Department”) between 2003 and the
time of trial. Those reports, and the Department’s investigation of and
response to same, included the following incidents.
In October 2004, the Department investigated a report that S.M. had a
black eye. When the Department and the Denton County Sheriff’s Office went
to the family’s trailer home to investigate, they found the home in an unlivable
2
… Sherman M. is the father of the four older children, and Stephen R. is
the father of the two younger children. Stephen did not appear or otherwise
respond to the Department’s petition to terminate his parental rights, and the
trial court terminated his rights. The Department did not seek to terminate
Sherman’s parental rights.
2
condition. Michael Hendrix, a sheriff’s office investigator, testified that the
floor had holes in it, there was no running water, electricity was supplied by an
extension cord running from Rudolph and Minnie’s trailer next door, the stove
and heating unit were inoperable, and the family shared the trailer with two
cats and four dogs. Bobbie did, however, have a hotplate and an electric oven
to prepare meals. The children had head lice, which Bobbie was attempting to
treat with mayonnaise and vinegar or alcohol, but she was not treating the
children’s bedding or clothing. The Department did not remove the children;
instead, it implemented a temporary safety plan under which the children were
to stay with Rudolph and Minnie while Bobbie repaired the trailer; the
Department paid for the repairs. Bobbie and the children moved back into the
trailer when the repairs were complete.
In August 2005, Bobbie took L.R.—who was two months old and had not
seen a doctor since birth—to the health department. L.R. had an infection
under his neck where baby formula had been allowed to build up. Also, his
fingernails were too long, allowing him to scratch himself; the back of his head
was flattened from lying on his back excessively; and he had a bad diaper rash.
The health department reported L.R.’s condition to the Department, and the
Department placed L.R. and J.R. with Rudolph and Minnie for thirty days.
Department caseworker Dayana Alcazar inspected Bobbie’s trailer on August
3
12 and found it to be very dirty. Alcazar visited the home again on September
2 and found the trailer to be very clean; but when she visited a third time on
September 16, the condition was not as good, and she found cat feces on the
floor where L.R. was playing.
In November 2005, Bonnie’s electricity was cut off due to nonpayment,
and she and the children moved into Rudolph and Minnie’s trailer, where they
slept on a porch that had been converted into a bedroom. The small,
windowless room was heated by a space heater on a shelf, and Bobbie would
smoke in the room with the six children present. Bobbie and the children slept
on a porch glider, two cribs, and a mattress on the floor. Minnie testified that
she slept in the room with the children when Bobbie was working the night shift
at the waffle house where she was employed.
On December 25, 2005, Bobbie took L.R. to the hospital because he was
having difficulty breathing. L.R. was hospitalized with pneumonia, and the
hospital reported to the Department that Bobbie had been feeding L.R.
evaporated milk instead of formula. Department caseworker Michelle Hiza
investigated the referral. W hen Hiza went to the hospital, Bobbie was not
there; but Hiza was able to interview Minnie— who also happened to be
hospitalized at the time—and Rudolph, who was sitting with L.R. Rudolph told
her that he thought Bobbie was a very good mom and that he had no concern
4
about Bobbie’s feeding L.R. a mixture of evaporated milk and water. Likewise,
Minnie told Hiza that she thought Bobbie was a good mom and that she had no
concerns about the children’s care. Hiza interviewed Bobbie the next day.
Bobbie told her that she was feeding evaporated milk and water to L.R. because
he could not keep whole milk or formula down. Hiza testified that Bobbie was
“angry, screaming, [and] yelling” during the interview and used a lot of
profanity. When Bobbie stayed in the hospital with L.R., the nurses had to
wake her up when L.R. was crying and ask her to take care of him; on one
occasion, Bobbie rolled over and went back to sleep. When she fed L.R. in the
hospital, she sometimes propped L.R. up with a bottle so that he could feed
himself.
Further investigation by the Department revealed the following
information:
• Dennis K., Bobbie’s boyfriend, moved in with Bobbie and the
children in December 2005. Dennis had recently been
released from prison and had a history of assault and family
violence. The record is not clear about how long Dennis lived
with Bobbie.
• When B.M. and S.M. began kindergarten, B.M.’s speech was
unintelligible and she communicated with grunts; S.M.’s
verbal skills were better but still below average for her age.
• B.M. and S.M. often went to school dirty and wearing ill-
fitting or inappropriate clothes and shoes.
5
• When Hiza visited R.M., B.M., and S.M. at school, she found
their speech unintelligible; she testified that they “really had
their own kind of language.”
• Hiza also testified that R.M.’s stomach was distended and
looked “very unusual.” Hiza later saw J.M. and J.R. and
observed that their stomachs also “kind of protruded out.”
The Department removed all six children on January 3, 2006. The trial
court signed an order implementing a service plan for Bobbie on January 27,
2006. Bobbie completed a psychological evaluation with Dr. Mark Foster, who
testified that she functioned emotionally on the level of a mid- to early
adolescent. Dr. Foster recommended that she take anger management classes,
but Bobbie did not attend the classes. The trial court ordered Bobbie to attend
weekly counseling sessions with therapist Michelle Greer; Bobbie met with
Greer six times then missed several appointments, cursed at Greer over the
phone, and refused to attend any more sessions. Bobbie testified that she
stopped attending the sessions because she could not pay the fee Greer
charged her for missed sessions (the Department paid for the sessions Bobbie
actually attended), but Greer testified that she charged the missed-session fee
in an attempt to make Bobbie feel as though the therapy had value and that
Bobbie refused to attend any more sessions even after Greer offered to reduce
the missed-session fee and let Bobbie pay it out over time. Bobbie completed
her MHMR assessment and participated in in-home parenting classes as
6
ordered; but CASA advocate Vicky Ulrich testified that the classes had no
effect on her parenting ability. Bobbie maintained housing and employment, but
she stopped making child support payments a year before trial.
Bobbie visited the children regularly while all six were in foster care in the
Denton area. Department workers’ written descriptions of the visitations
spotlight the Department’s concerns with Bobbie’s parental abilities:
• Bobbie found a cup half-full of an unidentified liquid in the
conference room where the visitation occurred; she emptied
the cup and—without washing it—filled it with apple juice; all
of the children shared the cup for the duration of the visit;
• She lifted L.R. off the floor by one wrist to stop him from
pushing J.R.’s chair;
• When J.R. attempted to walk out of the visitation room, she
grabbed him by the wrist and pushed him to the floor;
• She frequently “yelled and screamed” at Department workers
during the visits;
• She “made a big deal about the children eat[ing] all the sugar
so they could be ‘hyper’ when they go back” to their foster
homes;
• She did not attempt to redirect the children when they
engaged in inappropriate behavior, such as climbing on
cabinets, playing with electrical outlets, and taking toys from
one another;
• She allowed the children to listen to sexually suggestive song
lyrics on her cell phone;
7
• She lifted L.R. by his upper arm and argued with a
Department worker who told her that lifting L.R. that way
might dislocate his shoulder; a few minutes later, she jerked
J.R. by his upper arm;
• She mocked J.R. by screaming at him when J.R. cried or lost
his temper; and
• She sometimes arrived late and twice left one hour into the
two-hour visitation.
After the four older children were placed with relatives in Wichita Falls,
Bobbie visited them only three times in a ten-month period. Bobbie testified
that she could not visit the children in Wichita Falls because her truck broke
down, but she also testified that her mother would provide transportation for
the visits. The children’s foster father testified that on one visit in Wichita
Falls, Bobbie spent thirty or forty minutes with the children, then left to meet
with friends. The two younger children remained in foster care in Denton, and
although Bobbie was scheduled to visit them twice a month, she visited them
only six times in the ten months following July 2006.
At trial, Bobbie testified, “I don’t want my children back with me. I can’t
take care of them” and “I just want visitation.” The jury found that Bobbie had
violated subsections (D), (E), (N), and (O)3 of family code section 161.001(1);
3
… The jury’s findings on subsections (D), (E), and (N) were unanimous.
The jury split eleven to one on the subsection (O) findings with regard to each
child.
8
that termination of Bobbie’s parental rights was in the children’s best interest;
that the Department should be named as permanent managing conservator of
J.R. and L.R.; and that Rudolph and Minnie—who intervened in the termination
proceeding—should not be named possessory conservators of any of the
children. The trial court terminated Bobbie’s parental rights and appointed the
Department as the children’s permanent managing conservator. This appeal
followed.
II. Termination of Bobbie’s parental rights
A. 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).
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
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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 at least 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
(Vernon Supp. 2007); 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).
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
10
of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
When 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
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.
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When reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the verdict 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 parent violated the relevant conduct provision of
section 161.001(1) and that the termination of the parent’s parental rights
would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). 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, then the evidence is factually insufficient. H.R.M., 209
S.W.3d at 108.
B. Analysis
1. Grounds for termination: Endangerment
In her first and second issues, Bobbie challenges the legal and factual
sufficiency of the evidence to support the jury’s findings under family code
section 161.001(1)(D) and (E). Subsection (D) authorizes termination if a
parent knowingly placed or knowingly allowed the child to remain in conditions
or surroundings that endanger the child’s physical or emotional well-being, and
subsection (E) authorizes termination if a parent engaged in conduct that
12
endangers the child’s physical or emotional well-being. T EX. F AM. C ODE A NN.
§ 161.001(1)(D), (E).
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
Under subsection (D), it is necessary to examine evidence related to the
environment of the child to determine if the environment was the source of
endangerment to the child’s physical or emotional well-being. In re D.T., 34
S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet. denied). Conduct of a
parent in the home can create an environment that endangers the physical and
emotional well-being of a child. In re W.S., 899 S.W.2d 772, 776 (Tex.
App.—Fort Worth 1995, no writ). For example, abusive or violent conduct by
a parent or other resident of a child’s home may produce an environment that
endangers the physical or emotional well-being of a child. See id. at 776–77;
Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex.
App.—Fort Worth 1984, writ ref’d n.r.e.).
Under subsection (E), the relevant inquiry is whether evidence exists that
the endangerment of the child’s physical well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. In re R.D., 955
S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. Tex.
Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.
13
App.—Dallas 1995, no writ). Additionally, termination under section
161.001(1)(E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required. T EX. F AM. C ODE A NN. § 161.001(1)(E); D.T., 34 S.W.3d at 634; In re
K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). Under
either subsection (D) or (E), it is not necessary that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d
at 533.
Because the evidence concerning these two statutory grounds for
termination is interrelated, we consolidate our examination of it. See In re
J.T.G, 121 S.W.3d 117, 126 (Tex. App.—Fort Worth 2003, no pet.); In re
B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (recognizing
the link between a parent’s conduct and a child’s conditions and surroundings).
The Department’s brief recites a litany of facts and circumstances that
support the jury’s endangerment findings, as follows:
• The children were seen eating dog food off the floor of
Bobbie’s home in February 2003;
• Her home had old dog food matted into the carpet in
September 2003;
• There were two large holes in the home’s floor, which a
sheriff’s investigator testified were a hazard to the children
in October 2004;
14
• In October 2004, the home had no running water, the stove
was disconnected, and electricity was supplied via a power
cord connected to Rudolph and Minnie’s residence next door,
and the Department declared the home unlivable;
• According to Bobbie, the children bathed at Minnie’s house,
but during the Department’s investigation, Minnie was out of
town, the house was locked, and Bobbie and the children had
no access to water;
• In December 2005, Bobbie and the children were living on
the enclosed porch of her mother’s trailer;
• The children were not clean when attending daycare, and
daycare staff had to bathe them;
• Bobbie took J.M. to daycare with dirty bottles;
• J.R. fell off Bobbie’s bed when he was two weeks old;
• The children repeatedly had head lice;
• When she began kindergarten, B.M. could not speak and
communicated by grunting; her twin, S.M., could speak, but
was behind for her age; they were often dirty and
inappropriately clothed; and B.M. had to repeat kindergarten;
• L.R. had an infection on his neck from formula build-up, a flat
head from being left on his back excessively, and scratched
himself with overlong fingernails;
• The sheets on the children’s beds were dirty;
• B.M. appeared to be dehydrated at school;
• Bobbie was unable to afford formula for L.R. and failed to
maintain her WIC coverage;
15
• Bobbie failed to maintain Medicaid coverage for the children;
• Bobbie exhibited an unwillingness or inability to care for L.R.
when he was hospitalized;
• In January 2006, Bobbie’s home was dirty and had feces on
the floor; garbage and cigarettes were accessible to the
children; and the dishwasher had no front cover and was a
hazard to the children;
• When Department caseworker Hiza visited R.M., B.M., and
S.M. at school, they were filthy;
• Bobbie refused to let the Department have J.R.’s hair cut,
even though the hair would stick to his face because of the
food and mucus in it; and
• In December 2005, Bobbie allowed Dennis K.—who had just
been released from prison after serving a sentence for family
violence and assault with a deadly weapon—move into her
home; Bobbie testified that Dennis did not move in with her
until after the Department removed the children from her
home, but he was living with her at the time of trial. Also at
the time of trial, Dennis was under indictment for a drug
charge and a family violence assault charge.
Bobbie also exhibited potentially endangering behavior during supervised
visitations with the children after the Department removed them from her home,
including the following:
• During one visitation, Bobbie— who was talking on her cell
phone—grabbed J.R. by the wrist and pushed him back into
the visitation room; J.R. hit his head on the television stand;
• On one occasion, Bobbie found a half-filled cup by the sink
in the visitation room; she poured its contents down the sink,
16
filled the cup with apple juice, and let all six children drink
out of it for the duration of the visit;
• All Bobbie provided for the children’s lunch during one visit
was a loaf of white bread;
• On one occasion, Bobbie lifted L.R. by one wrist; on another
occasion, she lifted him over a chair by one arm;
• Bobbie allowed the children to play with potentially
dangerous objects during the visitations, such as electrical
outlets, and left the baby, L.R., on the floor where he could
get knocked over by the other children.
Bobbie argues that while at times her home was dirty and her children
were unkempt and had head lice, at other times her home and children were
relatively clean. But a more accurate assessment of the record shows—as the
State argues—that conditions would improve while the Department was
actively involved in Bobbie’s life, then deteriorate when its involvement ended.
Viewing all of the evidence in the light most favorable to the verdict, we
hold a fact-finder could reasonably form a firm belief or conviction that Bobbie
endangered the children. See In re J.P.B., 180 S.W.3d at 573. Thus, the
evidence is legally sufficient to support the jury’s findings that Bobbie violated
family code sections 161.001(1)(D) and (E). We further hold that the evidence
is factually sufficient to support the findings. See In re C.H., 89 S.W.3d at 28.
We overrule Bobbie’s first and second issues.
17
Having determined that the evidence is legally and factually sufficient to
support the jury’s findings under sections 161.001(1)(D) and (E), we do not
reach her third and fourth issues, in which she argues that the evidence is
legally and factually insufficient to support the jury’s findings under sections
161.001(1)(N) and (O). See T EX. R. A PP. P. 47.1; In re J.L., 163 S.W.3d at 84;
In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.).
2. Best interest
In her fifth issue, Bobbie challenges the legal and factually sufficiency of
the evidence to support the jury’s findings that termination is in the children’s
best interest. 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;
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(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.
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.
Michelle Greer, a therapist with whom Bobbie attended six counseling
sessions as a part of her service plan,4 testified that Bobbie was not concerned
4
… Greer testified that after six appointments, Bobbie got angry, cursed
at Greer over the phone, and told Greer that she would not attend counseling
any longer.
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with the children’s condition when the Department removed them from her
home and therefore did not feel that she needed to make any changes in the
way she cared for them. Ulrich—the CASA advocate—testified that Bobbie did
not comply with techniques that were taught in the parenting class that Bobbie
took, and the class seemed to have no effect on her progress. Ulrich testified
that Bobbie never accepted responsibility for her children’s removal and that her
refusal to do so was a “huge problem” because “if you don’t think that there’s
a problem, you can’t fix it.” Department conservatorship worker Amie Fletcher
testified that Bobbie failed to exhibit adequate parenting skills during supervised
visitations and showed no improvement after her parenting classes.
Conservatorship worker Shelby Johnson testified that Bobbie expressed an
overall lack of interest in raising the children and providing for their basic needs.
After removing the children from Bobbie’s home, the Department
eventually placed J.M., R.M., S.M., and B.M. with David and Georgia G., who
are relatives of their biological father, Sherman M.5 When David and Georgia
received the children, J.M. and R.M. did not know how to feed themselves and
S.M. and B.M. had no concept of how to brush their teeth. Amie Fletcher
testified that the children’s behavior improved while they lived with David and
5
… The children were in other foster homes between the time of removal
and the time of placement with David and Georgia.
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Georgia. David testified that the children are happy, laughing, and playing. The
four children’s clarity of speech has improved. Ulrich testified that the children
have made good progress after being placed with David and Georgia, and David
said that the children are performing school work far above the level at which
they performed when they were removed from Bobbie’s home. David said that
he and Georgia are prepared to raise the four children until their father is able
to care for them, or until adulthood otherwise.
J.R. and L.R. have been with a foster family since April 6, 2006. 6 Their
foster mother testified that when the family received the children, J.R.
communicated by screaming, pointing, and grunting; after twice-a-month
speech therapy sessions, J.R. can now speak. L.R. was on medications for
breathing problems and projectile vomiting, but he is now medication free.
Fletcher noted that the shape of L.R.’s head has improved and attributes his
weight gain to a diet of formula instead of evaporated milk. J.R. and L.R.’s
foster mother said that she and her husband are committed to adopting the
children.
Considering the evidence in light of the applicable Holley factors and
under the appropriate standards of review, we hold that the evidence is both
6
… Like their siblings, J.R. and L.R. were in other foster homes before
being placed in the home where they were living at the time of trial.
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legally and factually sufficient to support the jury’s findings that termination of
Bobbie’s parental rights is in the best interest of each of the children. See
Holley, 544 S.W.2d at 371–72; In re J.P.B., 180 S.W.3d at 573; In re C.H.,
89 S.W.3d at 28. We overrule Bobbie’s fifth issue.
III. Ruldolph and Minnie’s issues 7
In their first and second issues, Rudolph and Minnie challenge the legal
and factual sufficiency of the evidence to support the jury’s findings that the
Department, rather than Rudolph and Minnie, should be named as the
permanent managing conservators for J.R. and L.R. and that Rudolph and
Minnie should not be named as possessory conservators of any of the six
children. In their third issue, they argue that the evidence is legally and
factually insufficient to show that the jury’s findings are in the children’s best
interest.
Under family code section 153.005, a trial court may appoint a sole
managing conservator or joint managing conservators. T EX. F AM. C ODE A NN.
§ 153.005(a) (Vernon Supp. 2007). Section 153.006 allows a trial court to
7
… Ruldolph and Minnie attached as appendices to their brief several
documents that do not appear in the record. We cannot consider documents
attached to an appellate brief that do not appear in the record. Till v. Thomas,
10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.). This
court must hear and determine a case based on the record as filed and may not
consider documents attached as exhibits to briefs. Id.
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appoint one or more possessory conservators if it appoints a managing
conservator. Id. § 153.006 (Vernon Supp. 2007). “The best interest of the
child shall always be the primary consideration of the court in determining the
issues of conservatorship and possession of and access to the child.” Id.
§ 153.002 (Vernon Supp. 2007). When determining matters of
conservatorship, courts may apply the Holley factors to determine the child’s
best interest. See Blackwell v. Humble, 241 S.W.3d 707, 723 (Tex.
App.—Austin 2007); Vazquez v. Vazquez, No. 14-05-01257-CV, 2007 WL
1745324, at *3 (Tex. App.—Houston [14th Dist.] June 19, 2007, no pet. h.);
In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.—Beaumont 2001, no pet.) (all
applying Holley factors to conservatorship issues).
In a jury trial, a trial court may not render an order in contravention of the
jury’s findings. T EX. F AM. C ODE A NN. § 105.002(c)(1)(A) (Vernon Supp. 2007).
We review jury findings underlying a conservatorship appointment under the
ordinary legal and factual sufficiency review, not under the “clear and
convincing” standard applicable to termination proceedings. In re J.A.J., 2007
WL 3230169, at *6 & n.5 (Tex. 2007).
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered
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to prove a vital fact; (3) the evidence offered to prove a vital fact is no more
than a mere scintilla; or (4) the evidence establishes conclusively the opposite
of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334
(Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W . Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 T EX . L. R EV. 361,
362–63 (1960). In determining whether there is legally sufficient evidence to
support the finding under review, we must consider evidence favorable to the
finding if a reasonable fact-finder could and disregard evidence contrary to the
finding unless a reasonable fact-finder could not. City of Keller v. Wilson, 168
S.W.3d 802, 807, 827 (Tex. 2005).
An assertion that the evidence is factually insufficient to support a fact
finding means that the evidence supporting the finding is so weak or the
evidence to the contrary is so overwhelming that the answer should be set
aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.
1965). We are required to consider all of the evidence in the case in making
this determination, not just the evidence that supports the finding. Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S.
1017 (1998).
In addition to the evidence recounted above, Rudolph and Minnie point to
the following evidence in support of their legal and factual insufficiency issues.
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Minnie testified that Bobbie and the children always had access to the bathroom
and running water in Minnie’s trailer—even when Minnie and Rudolph were out
of town because they would leave the trailer unlocked. Registered nurse Kim
Frenette testified that when L.R was in the hospital, Minnie helped Frenette
care for L.R., appeared concerned about his well-being, held him, and fed him
his bottle. Minnie testified that when the school called her about the children’s
lice infestation, she treated their hair with a commercial lice treatment and that
they never had lice when they were living in her home. David G. and
Department workers Shelby Johnson and Amie Fletcher testified that Minnie’s
visits with the children were “appropriate” and that Minnie was “nurturing.”
Minnie also provided food for the children during visitations and made clothing
for them for Christmas and Easter.
The Department notes that Johnson also testified that Minnie “was very
quick to make excuses” for Bobbie when Bobbie acted inappropriately during
visitations and that the lives of the children did not improve while Minnie was
involved unless the Department was also actively involved. Minnie and Rudolph
told Department caseworker Hiza that they had no concerns about Bobbie’s
parenting ability. Minnie testified that she and Randolph were financially unable
to furnish formula for L.R. when Bobbie was feeding him evaporated milk.
When asked how she could afford to take a vacation but not help provide
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necessities for the children, Minnie testified that it was not her responsibility to
provide for them.
Considering all of the evidence in the light most favorable to the jury’s
verdict on managing and possessory conservatorship, we hold that there is not
a complete lack of evidence of a vital fact and that the evidence does not
conclusively establish the opposite of a vital fact; thus, the evidence is legally
sufficient to support the jury’s verdict. See Uniroyal Goodrich Tire Co., 977
S.W.2d at 334. Nor is the evidence supporting the verdict so weak or the
evidence to the contrary so overwhelming that the answer should be set aside
and a new trial ordered; thus, the evidence is factually sufficient. See Garza,
395 S.W.2d at 823. Therefore, we overrule Rudolph and Minnie’s first three
issues.
In their fourth issue, Rudolph and Minnie argue that their retained trial
counsel rendered ineffective assistance by failing to cross-examine the
physician who treated L.R., failing to offer photographs of the children and
medical records pertaining to J.R. as evidence, and failing to call Rudolph to
testify. In Texas, there is a statutory right to counsel for indigent parents in
parental-rights termination cases, and this right embodies the right to effective
counsel. In re M.S., 115 S.W.3d at 544; see T EX. F AM. C ODE A NN.
§ 107.013(a)(1) (Vernon Supp. 2007). But the statute provides that this right
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only applies to the parents of the child that is the subject of the termination.
In re J.S., No. 02-04-00277-CV, 2005 WL 1693537, at *5 (Tex. App.—Fort
Worth July 21, 2005, no pet.) (mem. op.). Rudolph and Minnie cite no
authority to support their claim that a grandparent intervenor in a parental
termination suit has a constitutional or statutory right to effective assistance of
counsel. Because they had neither a constitutional nor statutory right to
counsel, they cannot raise a claim of ineffective assistance of counsel, and we
overrule their fourth issue. See id. (holding great-grandparent intervenor who
sought to be appointed managing conservator of child had no constitutional or
statutory right to counsel and could not raise ineffective-assistance claim on
appeal).
Rudolph and Minnie’s fifth issue is “[w]hether there is a legal ruling about
person #1 questioning person #2 in a hospital and person #2 is taking pain
medication.” Their entire argument under this issue comprises the following
two sentences: “Michelle Hiza, TDFPS case worker, in January 2006,
interviewed [Minnie] at the hospital. She stated that [Minnie] was a patient at
the hospital.”
An issue on appeal unsupported by argument or citation to any legal
authority presents nothing for the court to review. Strange v. Cont’l Cas. Co.,
126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied), cert. denied, 543
27
U.S. 1076 (2005). Further, “we know of no authority obligating us to become
advocates for a particular litigant through performing their research and
developing their argument for them.” Tello v. Bank One, N.A., 218 S.W.3d
109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Thus, an
inadequately briefed point may be waived on appeal. Hall v. Stephenson, 919
S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied); see also Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994)
(discussing “long-standing rule” that point may be waived due to inadequate
briefing).
Rudolph and Minnie’s fifth issue is unsupported by argument or citation
to any legal authority; moreover, we cannot even discern from the issue
statement what complaint they intended to raise. Therefore, we overrule their
fifth issue as inadequately briefed.
IV. Conclusion
Having overruled Bonnie’s first, second, and fifth issues and all of
Rudolph and Minnie’s issues, and not having reached Bonnie’s third and fourth
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issues, we affirm the trial court’s order terminating Bonnie’s parental rights and
appointing the Department as the children’s permanent managing conservator.
ANNE GARDNER
JUSTICE
PANEL F: CAYCE, C.J.; GARDNER and MCCOY, JJ.
DELIVERED: April 24, 2008
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