in the Interest of L.D.E. and C.E., Children ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00440-CV
IN THE INTEREST OF L.D.E. AND C.E., CHILDREN,
From the 361st District Court
Brazos County, Texas
Trial Court No. 08-002659-CV-361
MEMORANDUM OPINION
After a bench trial, the trial court entered an order terminating appellant Robert’s
parental rights to his children, L.D.E. and C.E.1 By two issues, Robert argues that: (1)
the trial court lacked personal and subject-matter jurisdiction over this case; and (2) the
evidence supporting the trial court’s conclusion that termination is in the best interests
of the children is legally and factually insufficient. We affirm.
I. BACKGROUND
On October 31, 2008, the Texas Department of Family and Protective Services
(the “Department”) filed suit to terminate the parental rights of Robert and the mother
1 To protect the identities of the children, we have used fictitious names, Robert and Lucy, in this
case to identify appellant and the children’s mother, respectively. See TEX. R. APP. P. 9.8(b)(2). As of the
date of this opinion, Lucy has not challenged the trial court’s termination order.
of L.D.E. and C.E., Lucy.2 As indicated in an affidavit filed by a supervisor with the
Department, the initial removal of L.D.E. and C.E. from Robert and Lucy’s care was
precipitated by numerous allegations of domestic violence and purported drug and
alcohol abuse.3 The trial court signed orders designating the Department as temporary
managing conservator for the children. The Department subsequently devised family
service plans for Robert and Lucy and advanced towards the goal of family
reunification.
On June 17, 2009, the trial court signed an order for monitored return of the
children to Robert and Lucy after finding that they had “demonstrated adequate and
appropriate compliance with their service plan and have demonstrated progress, as
indicated by their therapist, Paul Johnson, to the point where the monitored return of
the children is appropriate at this time.” Also in this order, the trial court noted that the
new dismissal date for the case was December 14, 2009.
After the children were returned to Robert and Lucy’s home, the Department
was informed about three separate police reports involving allegations of domestic
violence between Robert and Lucy. Robert told police that Lucy was high on cocaine
and admitted to physically restraining Lucy from taking the children to a relative’s
birthday party. Robert asserted that he physically restrained Lucy to calm her down
and to prevent her from taking the children to a relative’s house where a registered sex
2 At the time of trial, L.D.E. was four years old, and C.E. was two years old.
In fact, at the time of C.E.’s birth, Lucy tested positive for marihuana. Lucy admitted to having
3
smoked marihuana during the majority of her pregnancy with C.E.
In the Interest of L.D.E. and C.E., Children Page 2
offender lived. At another time, Lucy allegedly pulled a knife on Robert and threatened
to kill him.4 Lucy alleged that she pulled the knife on Robert because Robert had hit
her. Robert admitted that he and Lucy had “bashed each other’s [car] windshields in, as
a result of more domestic alteractions [sic].” Another police report referred to Lucy’s
complaint that Robert had made false allegations against her—in particular, the
allegation that Lucy was high on cocaine while around the children. Lucy’s complaint
was dismissed after a June 17, 2009 test of her hair follicle indicated that she had in fact
ingested cocaine. As a result of Robert and Lucy’s repeated interactions with police, the
Department once again removed the children from the home. After a hearing on July
27, 2009, the trial court signed an order removing the children from monitored return
and placing the children in foster care. Trial date for the final order was set for
December 2, 2009.
After removing the children for a second time, Robert and Lucy participated in
couple’s counseling and individual counseling. The trial court conducted another
hearing in this matter on December 2, 2009; afterwards, the trial court entered a second
order for the monitored return of the children to Robert and Lucy’s home. In its order,
the trial court concluded that Robert and Lucy “have each complied with the services
ordered by the court and have demonstrated their ability to understand the needs of the
children, including the necessity of a stable, violence and drug[-]free, home
environment” and stated that the new dismissal date for this matter was May 31, 2010.
4Lucy was arrested and charged with aggravated assault with a deadly weapon, though the
charge was reduced to the offense of making a terroristic threat. At the time of trial, Lucy was on
probation for the offense.
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Shortly after being returned to Robert and Lucy’s home, the children were once
again removed by the Department. This final removal was precipitated by Robert: (1)
breaking into the apartment that he shared with Lucy and the children by breaking
glass near the door and opening the dead-bolt lock late one evening; and (2) physically
restraining Lucy on the floor while the children watched. As a result of the altercation,
Lucy sustained a cut on her leg from the broken glass. Robert was arrested and charged
with family violence assault; however, at the urging of Lucy, the charges were
dropped.5 On April 29, 2010, the trial court signed an order removing the children from
monitored return because: (1) Robert and Lucy had not provided the children with a
safe living environment; (2) the children continued to need substitute care; and (3) the
children’s foster-care placement was appropriate for their needs.
Subsequently, the trial court conducted a bench trial on the Department’s
termination petition. After hearing testimony from several witnesses, including both
Robert and Lucy, the trial court signed an order terminating Robert and Lucy’s parental
rights to L.D.E. and C.E. Thereafter, Robert filed a motion for new trial and a statement
of points to be raised on appeal. The trial court held a hearing on Robert’s motion for
new trial and statement of points and concluded that Robert was indigent and that his
appeal was not frivolous. Findings of fact and conclusions of law were entered. This
appeal followed.
5 The record indicates that Robert has an extensive criminal history, including two 1988
convictions for burglary of a building, a 1991 conviction for five counts of delivery of a controlled
substance, a 2006 conviction for driving while intoxicated, and this arrest. With regard to his 1991
convictions, Robert received a forty-year sentence; however, after serving approximately ten years of his
sentence, Robert was placed on parole until 2030. Therefore, at all relevant times in this appeal, Robert
was subject to the provisions of his parole.
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II. ROBERT’S JURISDICTIONAL ARGUMENTS
In his first issue, Robert argues that the trial court lacked personal and subject-
matter jurisdiction over this case because it failed to comply with section 263.403 of the
family code. See TEX. FAM. CODE ANN. § 263.403 (West 2008). In particular, Robert
contends that the trial court’s order removing the children from monitored return failed
to “set forth specific findings regarding the grounds for the order being rendered,” as
required by section 263.403. See id. Because the trial court’s order allegedly was not
compliant with section 263.403, Robert asserts that the trial court lacked jurisdiction
over this case, and thus, the termination order is void. The Department counters that
Robert may not assert his challenge to the trial court’s removal order because he failed
to specifically present this challenge in his statement of points. In addition, the
Department argues that even assuming that Robert had properly raised this issue in his
statement of points, the trial court’s order included specific findings and complied with
section 263.403; therefore, the trial court had jurisdiction over this matter, and the
termination order is not void.
A. Applicable Law
Section 263.403, entitled “Monitored Return of Child to Parent,” provides that:
(a) Notwithstanding Section 263.401, the court may retain jurisdiction and
not dismiss the suit or render a final order as required by that section if
the court renders a temporary order that:
(1) finds that retaining jurisdiction under this section is in the best
interest of the child;
(2) orders the department to return the child to the child’s parent;
In the Interest of L.D.E. and C.E., Children Page 5
(3) orders the department to continue to serve as temporary
managing conservator of the child; and
(4) orders the department to monitor the child’s placement to
ensure that the child is in a safe environment.
(b) If the court renders an order under this section, the court shall:
(1) include in the order specific findings regarding the grounds for
the order; and
(2) schedule a new date, not later than the 180th day after the date
the temporary order is rendered, for dismissal of the suit unless
a trial on the merits has commenced.
(c) If a child placed with a parent under this section must be moved from
that home by the department before the dismissal of the suit or the
commencement of the trial on the merits, the court shall, at the time of
the move, schedule a new date for dismissal of the suit unless a trial on
the merits has commenced. The new dismissal date may not be later
than the original dismissal date established under Section 263.401 or
the 180th day after the date the child is moved under this subsection,
whichever date is later.
(d) If the court renders an order under this section, the court must include
in the order specific findings regarding the grounds for the order.
TEX. FAM. CODE ANN. § 263.403.
B. Discussion
At the outset of our analysis of this issue, we note that Robert failed to challenge
the trial court’s April 29, 2010 removal order in his statement of points. Instead, his
statement of points focused on the sufficiency of the evidence supporting the trial
court’s termination order. Section 263.405(i) states that an appellate court may not
consider any issue that was not specifically presented to the trial court in a timely-filed
statement of points on appeal. See TEX. FAM. CODE ANN. § 263.405(i) (West 2008); In re
In the Interest of L.D.E. and C.E., Children Page 6
J.H.G., 302 S.W.3d 304, 306 (Tex. 2010); see also In re G.B., No. 10-10-00244-CV, 2011 Tex.
App. LEXIS 4206, at *5 (Tex. App.—Waco June 1, 2011, no pet. h.). Though Robert
attempts to characterize this issue as a jurisdictional issue that can be raised for the first
time on appeal, a reading of his appellate briefs reveals that the crux of this issue is
whether the trial court complied with section 263.403 when it entered its removal order.
And, because he did not raise this issue in his statement of points, we may not address
this issue. See TEX. FAM. CODE ANN. § 263.405(i); In re J.H.G., 302 S.W.3d at 306; see also
In re G.B., 2011 Tex. App. LEXIS 4206, at *5.
However, even if Robert had properly complained about this issue in his
statement of points, we see no error in the trial court’s April 29, 2010 removal order, as
it complies with section 263.403 of the family code.6 See TEX. FAM. CODE ANN. § 263.403.
In fact, the order specifically states findings regarding the grounds for the order and
includes a new dismissal date that is not later than the 180th day after the temporary
order was rendered. Specifically, the order states that the trial court found:
6 Though section 263.405(i) prohibits us from addressing this issue considering Robert failed to
complain about the trial court’s removal order in his statement of points, we find it noteworthy that
Robert include the following statements in his statement of points:
Respondent [Robert] has been denied due process by statutorily being required to file
points on appeal of all appellate issues without the assistance of the full trial transcript to
assist in making the points specific enough to survive a hearing on frivolousness. This
requirement is improper, completely defeats Respondent’s ability to adequately address
all issues and areas where [his] Constitutional rights have been violated and totally
deprives [him] of [his] due process rights to effectively [present his] issues to the
appellate court.
See TEX. FAM. CODE ANN. § 263.405(i) (West 2008). After a hearing, the trial court determined that Robert
is indigent and that his appeal is not frivolous; thus, he was entitled to a full record. Therefore, based on
the foregoing and out of an abundance of caution, we will address the merits of Robert’s issue pertaining
to the trial court’s removal order.
In the Interest of L.D.E. and C.E., Children Page 7
that neither the child’s parents nor any other person or entity entitled to
service under Chapter 102, Texas Family Code is willing and able to
provide the child . . . with a safe environment, and therefore return of the
child to a parent or other person or entity is not in the child’s best interest.
The child continues to need substitute care and the child’s current
placement is appropriate for the child’s needs. . . . The Court finds that no
other plans or services are needed to meet the child’s special needs or
circumstances.
Because of Robert and Lucy’s inability to provide L.D.E. and C.E. with a safe
environment, the trial court also concluded that “it was necessary to remove the
children from the monitored placement previously ordered.” Clearly, the trial court’s
April 29, 2010 removal order included specific findings to support the removal of the
children. See id. § 263.403(d). By entering an order that complied with section 263.403,
the trial court was authorized to retain jurisdiction over the parties and subject-matter
of this case without dismissing or otherwise entering a final order disposing of this case.
See id. § 263.403(a). As such, we cannot agree with Robert’s assertion that the trial
court’s termination order is void for lack of jurisdiction. Based on the foregoing, we
overrule Robert’s first issue.
III. BEST INTEREST OF THE CHILDREN
In his second issue, Robert challenges the sufficiency of the evidence supporting
the trial court’s finding that termination was in the best interest of the children.
A. Standard of Review and Applicable Law
1. Termination of Parental Rights
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.”
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Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599 (1982); In
re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights are of constitutional
magnitude, they are not absolute. 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 petitioner
seeks not just to limit parental rights but to eradicate them permanently by divesting
the parent and child of all legal rights, privileges, duties, and powers normally existing
between them, except for the child’s right to inherit. TEX. FAM. CODE ANN. § 161.206(b)
(West 2008); 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. See Holick, 685 S.W.2d at 20-21.
In an involuntary termination proceeding brought under section 161.001 of the
family code, the Department must establish: (1) at least one ground under subsection
(1) of section 161.001; and (2) that termination is in the best interest of the child. TEX.
FAM. CODE ANN. § 161.001 (West Supp. 2010); 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. See Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing evidence.
TEX. FAM. CODE ANN. §§ 161.001, 161.206(a). Evidence is clear and convincing if it “will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
In the Interest of L.D.E. and C.E., Children Page 9
allegations sought to be established.” Id. § 101.007 (West 2008). Due process demands
this heightened standard because termination results in permanent, irrevocable changes
for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting the standards for termination and
modification).
2. Sufficiency of the Evidence in Parental-Termination Cases
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 and 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.
It is necessary to consider all of the evidence, not just that which favors the
verdict. Id. However, we cannot weigh witness credibility issues that depend on the
appearance and demeanor of the witnesses, for that is within the fact-finder’s province.
Id. at 573-74. 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.
In reviewing the evidence for factual sufficiency, we must give due deference to
the fact-finder’s findings and be careful to not supplant the trial court’s judgment with
our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether,
In the Interest of L.D.E. and C.E., Children Page 10
on the entire record, a fact-finder could reasonably form a firm conviction or belief that
the parent violated the relevant conduct provisions of section 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the child. In
re 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, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d
at 108.
3. Best Interest of the Child Factors
The supreme court has devised the following list of several non-exclusive factors
that the fact-finder may consider in determining the best interest of the 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 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, and
other factors not on the list may also be considered when appropriate. In re C.H., 89
S.W.3d at 27; see TEX. FAM. CODE ANN. § 263.307 (West 2008) (outlining additional
In the Interest of L.D.E. and C.E., Children Page 11
factors that the trial court may consider in determining the best interest of the children).
Furthermore, undisputed evidence on 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.
B. Discussion
At the conclusion of the trial, the trial court found that Robert had engaged in
conduct prohibited by section 161.001 of the family code—namely, (1) knowingly
placing or knowingly allowing the children to remain in conditions or surroundings
that endanger the physical and emotional well-being of the children and (2) knowingly
placing the children with persons who engaged in conduct that endanger the children’s
physical and emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E).7
Robert filed a motion for new trial, and after conducting a hearing on Robert’s motion,
the trial court entered several findings of fact and conclusions of law. Among the
findings of fact made by the trial court were:
7. The Court finds that [Robert] and [Lucy] have each demonstrated an
inability to provide the children with a safe environment.
8. The Court finds that the appointment of the DEPARTMENT OF
FAMILY AND PROTECTIVE SERVICES as managing conservator of the
children is in the best interest of each of the children.
9. The Court finds that [Lucy] participated in a continuous course of
domestic violence in the home; used marijuana while pregnant; and used
marijuana and cocaine.
7 On appeal, Robert does not challenge the trial court’s finding with respect to section 161.001(1).
See TEX. FAM. CODE ANN. § 161.001(1) (West Supp. 2008). Instead, he focuses his appeal on whether the
termination of his parental rights was in the best interest of the children. See id. § 161.001(2).
In the Interest of L.D.E. and C.E., Children Page 12
10. The Court finds that [Robert] participated in a continuous course of
domestic violence in the home; continued to use alcohol, at times while in
possession of the children; and his use alcohol subjected him to the risk of
parole revocation.
11. The Court finds that the Department attempted two periods of
reunification of the children with Respondents [Robert and Lucy] under
monitored returns in the home and that each time the children were
removed from the Respondents’ care due to incidents of family violence.
The record is replete with testimony from witnesses about numerous instances of
domestic violence between Robert and Lucy. In fact, the children were removed from
Robert and Lucy’s home on three different occasions because of incidents of domestic
violence. James Shinder, a psychologist who worked with the family, testified that
Robert described an incident where Lucy pulled a knife on him. Lucy told Shinder
about several instances of violence between Robert and herself, which Shinder
described as “fairly significant” in nature. As a result of the knife incident, Lucy was
charged with aggravated assault with a deadly weapon, though the charge was reduced
to making a terroristic threat. The third removal of the children was precipitated by
Robert breaking a window in the apartment in order to gain access to the home late one
evening. After breaking the window, Robert reached in and unlocked the dead-bolt
lock on the door. Shortly thereafter, Lucy encountered Robert, and Robert pinned Lucy
to the floor.8 As she fell to the floor, Lucy sustained a cut from the broken window
glass. The police report indicated that the children witnessed the entire episode, a fact
8 Robert explained that he pinned Lucy down in front of the children for the purpose of calming
Lucy down and to “get her quiet.” However, when further questioned about the incident, Robert claimed
to not know why he pinned Lucy down and acknowledged that she did not hit him or have a weapon
when he pinned her down.
In the Interest of L.D.E. and C.E., Children Page 13
that Robert confirmed in his testimony. Robert also admitted that he had drunk “one,
two beers” prior to going over to the apartment that evening.
Robert also admitted that he and Lucy had broken each other’s car windshields
during another domestic dispute and that Lucy had previously threatened to kill him.
Lucy acknowledged that law enforcement had been called to the family home as a
result of domestic violence on a number of occasions. She also admitted to having
smoked marihuana through most of her pregnancy with C.E. In order to facilitate the
return of the children to his household, Robert was instructed to stay away from Lucy;
however, Robert testified that he often visits Lucy, including a week before trial,
because he loves her.9 Robert also testified that he does not work, as he injured his back
at his previous job. Instead, Robert collects workers’ compensation benefits.
Robert’s parole officer, Courtney Shell, stated that Robert had been “fairly
compliant” with the conditions of his parole. She noted that Robert had some issues
with paying fees, but that was due to the fact that he is not working. Shell was not
aware that Robert regularly drinks alcohol and stated that if he was doing so, then
Robert was violating the conditions of his parole. Shell recalled that in 2006 and in
2008, Robert received sanctions for testing positive for cocaine and marihuana, though
Robert denied ever using drugs.
Shinder testified that Robert admitted to consuming a twenty-four ounce can of
beer each day, an amount that concerned Shinder. Moreover, Robert testified that he
9 Specifically, Robert stated that he “love[s Lucy]. We got a lot of ties together. It’s hard to let go
after five years. I got to say something to her, you know. It is just something I need.”
In the Interest of L.D.E. and C.E., Children Page 14
drank alcohol each day, even though such acts were in violation of his probation.
Shinder also noted that, on five occasions, his office tried to work with Robert to
complete psychological and parenting assessments, but Robert “did not . . . complete
the full battery of testing.” Shinder did, however, get Robert to participate in a couple
of personality tests. Based on the results of these tests, Shinder determined that Robert
had an antisocial personality disorder and that he met the criteria for “schizoid
personality traits.” Based on his evaluation of Robert, Shinder had “major concerns”
about Robert’s ability to properly parent L.D.E. and C.E.
Regarding the impact of the domestic violence on the children, Louis Rishkofski,
the therapist for L.D.E., testified that he observed L.D.E. exhibit behaviors consistent
with witnessing domestic violence.10 The behaviors, including an inability to play,
depressive symptoms, aggression towards toys, limited vocabulary, and a limited
desire to interact with others, concerned Rishkofski to such a degree that he believed
that L.D.E. may be suffering from post-traumatic stress disorder as a result of observing
Robert and Lucy’s incidents of domestic violence. When asked to draw her family,
L.D.E. drew “squiggles,” which Rishkofski determined were “very regressed” for a
child L.D.E.’s age. Rishkofski recalled that L.D.E. expressed to him spontaneously that
“Dad [Robert] hit Mom [Lucy], and that hurts.” L.D.E. also described other incidents of
domestic violence between Robert and Lucy and that those incidents caused L.D.E. to
be fearful. Rishkofski did state, however, that it appeared that L.D.E. had “more
10 At the time of removal, C.E. was five months old and, therefore, was too young to participate in
therapy.
In the Interest of L.D.E. and C.E., Children Page 15
connection with dad than with mom, even though the connections appear confused.”
Rishkofski was very concerned about L.D.E.’s propensity to be aggressive with her toys
because he believed that she “may be modeling the very thing she witnessed.” When
asked whether she wanted to live with Robert, L.D.E. initially said “no,” but she said
“yes” later in the conversation with Rishkofski. Nevertheless, Rishkofski believed that
L.D.E. would be set back developmentally if returned to Robert and Lucy’s home where
another instance of domestic violence was likely. According to Rishkofski, it appeared
as if L.D.E. responded to observing the incidents of domestic violence by regressing or
“shut[ting] down emotionally and choos[ing] not to feel or doesn’t know what to feel.”
Brian Miller, a school psychologist, stated that he began working with L.D.E. in
August 2009, when L.D.E. was three years old. Based on his initial observations, Miller
was concerned that L.D.E.’s speech was not consistent with a normal three year old.
Miller also noticed that L.D.E. did not know how to play with toys. L.D.E. “tended to
be more withdrawn, not seeking interaction with other children or with adults.” In
September 2009, Miller administered the “Brigance screener,” and L.D.E. initially scored
eighteen out of one hundred points. Miller testified that the “Brigance screener” was a
widely accepted test used to measure developmental skills, based on “knowledge of
colors, knowledge of numbers, things of that nature.” Miller administered the test six
months later, while L.D.E. was in foster care, and L.D.E. scored a fifty out of one
hundred points. The increase in the score indicated to Miller that L.D.E. “has the ability
to learn” and did not have a “developmental disorder like mental retardation . . . .”
Miller expressed concern that Robert and Lucy were not following through with L.D.E.
In the Interest of L.D.E. and C.E., Children Page 16
at home to encourage her development. In addition, Miller noted that he did not
believe that Robert and Lucy’s home was “a safe situation.”
Kelly Stewart, a director at the Blessings From Above Day Care where L.D.E.
and C.E. attended, recalled an instance where Robert picked up the girls from daycare
around 4:30 or 5:00 p.m. At this time, Stewart believed that Robert was drunk. He
apparently smelled of alcohol, had slurred speech, and had hazy eyes. Stewart called
the police; however, Robert left with the children before the police arrived at the
daycare. When asked whether the children appeared comfortable with Robert, Stewart
stated that “[t]hey never wanted to leave with him. They always cried when he came to
pick them up. They always wanted to stay.”
Paul Johnson, a licensed professional counselor who began working with the
family in December 2008, noted that Robert missed several counseling appointments
without providing Johnson with notice, including one appointment just prior to the trial
of this matter. Nevertheless, Johnson stated that Robert had made some progress in
counseling and recommended that Robert’s parental rights not be terminated—a
recommendation that was echoed by the children’s attorney ad litem. Johnson’s only
concerns about Robert’s ability to parent had “to do with contact with [Lucy] and how
they resolve problems.”
Caseworkers for the Department testified that they had four different addresses
on file for Robert and Lucy since 2008. Caseworkers also noted that Robert was not
honest with them regarding his living situation. Robert initially lived with his sister;
however, he later moved in with his dying mother and his mentally-disabled sister
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without telling the Department or his parole officer about the move. Caseworkers
described the start of supervised visits with Robert and Lucy at a local McDonald’s as
such:
A mess. They’re [the children] screaming and crying. They don’t want to
leave the sight of the foster parent. They don’t want to start the visit.
There are temper tantrums when the other parent shows up and they are
ready to go home by the end of the visit to the foster mom.
Regarding the current placement of the children, caseworkers indicated that the
children were not placed in a “foster-to-adopt home.” When asked whether placement
with Robert would be in the best interests of the children, Department caseworker Kelly
Allen stated that:
Since I have had the case, I feel that even though a solution was put
on the table that would allow for the children to be returned to one parent,
services were not taken seriously.
[Robert] continued to miss therapy sessions, an apartment was not
obtained on his behalf.
When you are told that this is the way to get your children back
and for several months in a row you don’t do it, I don’t see how that is in
the best interests of the children to place back on the day of trial.
The repeated disturbances out to the house, the lies that I have been
told by each parent that: Yes, we’re staying apart, and they’re not.
From [Robert]: This is my home address, and it isn’t.
From [Lucy]: Not using her therapy session wisely, knowing that
she is under the radar, it leads me to think:
What does it take for each parent to really take this case seriously
and to really do what is asked of them?
They have had two years to essentially show progress in therapy,
to obtain employment, to get housing.
In the Interest of L.D.E. and C.E., Children Page 18
I understand that [Robert] has had difficulty with employment due
to an injury, but that is not an excuse for why he has not obtained
housing, and why he has not been forthright with me about where he
lives.
Allen also noted that she told Robert about programs that the Department has to assist
those with meager finances in finding living accommodations; Robert chose not to take
advantage of these programs.
Based on the foregoing evidence, a reasonable fact-finder could deduce that
Robert has a problem with alcohol and violence, both of which could ultimately result
in the revocation of his probation. In addition, a reasonable fact-finder could infer that
Robert is incapable of providing a safe environment for the children, especially given
his propensity to visit with Lucy and the frequent violence that erupts when the two get
together. The record also indicates that the children were in foster care for two years
and that the trial court authorized the monitored return of the children to Robert and
Lucy on two different occasions, yet both occasions resulted in the Department having
to remove the children due to domestic violence. It is also evident that the children’s
development has been stunted by their exposure to the numerous instances of domestic
violence between Robert and Lucy and that their development would be further
stunted by observing additional instances of domestic violence. It is clear that the
evidence touches on several of the best interest factors articulated in Holley, In re C.H.,
and section 263.307 of the family code. See Holley, 544 S.W.2d at 371-72; see also TEX.
FAM. CODE ANN. § 263.307; In re C.H., 89 S.W.3d at 27. As a result, we conclude that a
fact-finder could reasonably form a firm belief or conviction that termination was in the
In the Interest of L.D.E. and C.E., Children Page 19
best interests of the children. See In re J.P.B., 180 S.W.3d at 573; see also In re H.R.M., 209
S.W.3d at 108; In re C.H., 89 S.W.3d at 28. Accordingly, we hold that the evidence is
legally and factually sufficient to establish that the termination of Robert’s parental
rights is in the best interests of L.D.E. and C.E. See In re J.P.B., 180 S.W.3d at 573; see also
In re H.R.M., 209 S.W.3d at 108; In re C.H., 89 S.W.3d at 28. We overrule Robert’s second
issue.
IV. CONCLUSION
Having overruled both of Robert’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 20, 2011
[CV06]
In the Interest of L.D.E. and C.E., Children Page 20