in the Interest of K.A.F., D.A.F. and A.L.F. ( 2013 )

Affirm and Opinion Filed June 14, 2013
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01582-CV
IN THE INTEREST OF K.A.F., D.A.F. AND A.L.F., CHILDREN
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-18472-Z
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang-Miers and Lewis
Opinion by Chief Justice Wright
This is an appeal from the trial court’s judgment terminating Mother’s parental rights to
her three daughters, K.A.F., D.A.F., and A.L.F.1 In six issues, Mother contends the evidence is
legally and factually insufficient to support the termination, the Texas Department of Family and
Protective Services (TDFPS) denied her fair treatment, and her trial counsel was ineffective.
Finding no reversible error, we affirm.
BACKGROUND
Mother and Father met in 1999 and were together until 2008. They had their first child,
K.A.F., in March 2001. D.A.F. was born two years later in May 2003, and A.L.F. was born in
February 2007.
1
The trial court’s judgment also terminates Father’s parental rights to the children. However, he does not appeal.
Between July 2002 and October 2011, TDFPS received eight referrals concerning the
family. The referrals alleged family violence, negligent supervision and sexual abuse of the
children, and drug use. Throughout this nine-year period, TDFPS offered or was ordered to
provide various services to Mother and Father, including counseling, drug assessments, parenting
classes, individual counseling, domestic violence counseling, and a batterer’s intervention and
prevention (BIP) program. Mother and Father sometimes completed services, and at other times,
did not. In March 2012, after Mother and Father failed to complete court-ordered services in
connection with the October 2011 referral, TDFPS decided to seek termination of Mother’s and
Father’s parental rights. TDFPS alleged in its petition for termination that Mother engaged in
eighteen of the twenty courses of conduct listed in the Texas Family Code as grounds for
termination and that termination was in the children’s best interest.2 See TEX. FAM. CODE ANN. §
161.001 (West Supp. 2012).
The case was tried to the bench in October 2012. Over the two-day trial, the court heard
testimony from fourteen witnesses, including Mother and Father.
TDFPS supervisor Tamara Hansen testified TDFPS received the first referral in July
2002, when K.A.F. was one year old. According to Hansen, the referral alleged negligent
supervision of K.A.F. An investigation revealed Father sold drugs from the home, used cocaine,
and had been violent towards Mother. K.A.F. was removed from the home, and Mother and
Father were offered services with the goal of family reunification. During the next year, Mother
and Father received individual counseling and completed parenting classes. Mother also
2
The two statutory grounds TDFPS did not allege were section 161.001(1)(H) concerning abandonment of the Mother during pregnancy
and section 161.001(1)(T) concerning a conviction for murdering the other parent of the child. See TEX. FAM. CODE ANN. § 161.001(1)(H),(T)
(West Supp. 2012).
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attended domestic violence counseling, and Father completed a BIP program and drug treatment.
K.A.F. was returned home in July 2003, and the case was closed.
Hansen testified that TDFPS received a second referral in February 2008 alleging
physical abuse of the three girls by Father and negligent supervision by both Father and Mother.
At the time, K.A.F. was almost seven, D.A.F. was almost five, and A.L.F. was one. The referral
followed Mother’s hospitalization after she was assaulted by Father. The children were moved
to the home of Mother’s sister, and Father was charged with aggravated assault with a deadly
weapon.3 Hansen testified the children were sleeping at the time of the assault, but K.A.F.
learned of the assault from her maternal grandmother and became fearful that Father would harm
her. TDFPS found no evidence the children were being physically abused, but they were
concerned about Father hurting Mother and the risk of harm to the children. According to Nicole
Hawley, another TDFPS supervisor, Father claimed Mother was the aggressor, but there was no
evidence supporting his allegation. Because the children were with their aunt, TDFPS did not
seek an alternative placement for the children, but referred Mother and Father to its “Family
Based Safety Services.” Hansen and Hawley testified that, to help protect Mother and the
children, they requested Mother receive both domestic violence and individual counseling and
requested Father complete a BIP program and drug assessment, submit to random drug testing,
and attend individual counseling. Both Mother and Father were also asked to complete parenting
classes. Additionally, Mother agreed to a service plan that prohibited Father from living in the
same home with the children and allowed him only telephone contact with them. Neither Mother
nor Father completed any services, but they did separate. In February 2009, after determining the
risk to the children had diminished because Father moved, TDFPS closed the case.
3
The record reflects Father pleaded guilty and confessed to pushing Mother against the wall, biting her, pulling her hair, choking her, and
using a firearm. In June 2009, he was placed on deferred adjudication community supervision for a period of five years and ordered to have no
contact “in any form” with Mother.
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In April 2009, two months later, TDFPS received a third referral. This referral alleged
physical abuse, negligent supervision, and physical neglect of the children by Mother. Hansen
testified an investigation revealed Mother had been using marijuana and was in another violent
relationship. According to Hansen, the investigation also revealed “a lot of men [were] in and
out of the home” and the home was unsanitary and unsafe for the children. The children were
removed from the home, and Mother was asked to complete parenting classes and domestic
violence counseling. Due to concerns that Mother was not properly supervising the children
because of the marijuana use, TDFPS also asked Mother to complete a drug treatment program.
Mother successfully completed all the services, the children were returned home, and the case
was closed.
TDFPS received a fourth and fifth referral in 2010. In February 2010, there was an
allegation of possible drug use in the home and negligent supervision by Mother as a result of the
drug use. Hansen testified these allegations were ruled out after Mother tested negative for drugs
on a random test. In December 2010, a fifth referral alleged physical abuse of the girls by
Mother and led to disclosure by K.A.F. that she had been sexually abused by a male babysitter.
Hansen testified that TDFPS was unable to determine the babysitter’s identity; and because the
babysitter did not live with Mother and the girls, the children were not removed and no services
were offered.
The final three referrals were received between April and October 2011. The first of
these referrals, in April 2011, alleged negligent supervision of the girls by Mother and sexual
abuse of K.A.F. by the male babysitter. At the time the referral came in, however, the children
were living with their maternal grandmother. According to TDFPS investigator Bree Kimball,
Mother had been arrested in February 2011 for “[taking] a knife to [the] throat” of her boyfriend,
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B.D., following an “altercation.” Because the children were living with the maternal
grandmother, TDFPS did not offer any services and closed the case.
The last two referrals, received in May and October 2011, alleged sexual abuse of D.A.F.
by B.D. and sexual abuse of K.A.F. by Father, respectively. At the time of these referrals, the
children were living in Fort Worth with Father and his wife as the maternal grandmother could
no longer care for them because of health issues. TDFPS investigator Rebecca Williams testified
that during the investigation of the May referral she learned from K.A.F., who was ten at the
time, that the male babysitter had “fondl[ed] on her chest . . . got undressed and tried to scoot
over her so his bottom brushed up against her.” K.A.F. told Williams she had told this to
Mother, but Mother “whipped” her and “never did anything.” According to K.A.F., Mother
“whipped” them often with a belt “for no reason” and left bruises and marks. K.A.F. told
Williams Mother used and sold “crack and weed,” and she had witnessed Mother “cut [B.D.’s]
throat.” She also witnessed B.D. hold a gun to Mother’s head.
D.A.F., who was eight at the time, told Williams of “whippings” by Mother also and of
fights between Mother and B.D that led to the police being called. She also told Williams that,
when she was seven, B.D. touched her “private part” with his hand while he watched them at a
hotel.
As part of her investigation, Williams also interviewed A.L.F. and Father. In response to
Williams’s question about the identity of A.L.F.’s mom, the four-year-old told Williams her
name was A.F., and described her as Father’s wife. A.L.F. said she felt safe at home with Father
and with “granny and papa.” Father stated he had not seen Mother in three years. He told
Williams that when he and Mother were together, Mother “would always leave the children with
him and take off for days at a time.” Father admitted his relationship with Mother was unhealthy
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and he had been charged twice for assaulting her. He blamed Mother for the violence, though,
and stated he moved to Fort Worth to “get away from [Mother’s] violence.”
Williams testified she also met with Father’s wife and their four-year-old and one-year
old sons. She had no concerns with Father and his wife, and found their home clean, “adequate,”
and “free from safety and any health hazard[s.]” TDFPS left the children with Father and the
case was closed.
The October referral was received after Mother tried to withdraw K.A.F. and D.A.F. from
the school in which Father had enrolled them. Janet Prejean, K.A.F.’s fifth grade homeroom
teacher during the 2011-2012 school year, testified Father told her at the beginning of the school
year that Mother could have no contact with the children. While the school principal determined
whether the children could be released to Mother, Prejean sat with K.A.F. and D.A.F. in the
nurse’s office talking. K.A.F. told Prejean that she was afraid to go with Mother because Mother
“had just gotten out of jail . . . [for] cut[ting] her boyfriend [B.D.]. . . from this ear to that ear.”
K.A.F. told Prejean that Mother and B.D. “had very violent fights,” that B.D. broke into their
apartment “all the time,” and that Mother “always let him come back.” K.A.F. also told Prejean
about the male babysitter. Prejean testified K.A.F. told her she did not feel any safer going
home with Father because he had shown her a pornographic video and also had sexually
assaulted her.
Kimball, who investigated this referral, testified an additional interview with K.A.F.
confirmed Prejean’s assertions. TDFPS removed the children from Father and placed them with
P.K., Father’s mother, while the allegations were investigated. During the investigation, Kimball
interviewed Mother in the motel room where Mother was living. According to Kimball, the
room smelled “overwhelming[ly]” of marijuana and Mother appeared to be under the influence
of drugs. Mother told Kimball about her February 2011 arrest for stabbing B.D. and stated she
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spent “a short amount of time” in jail before her parents bonded her out. The girls continued to
live with her parents after she was released from jail, but she cared for them during the day until
May 2011 when she was arrested for assaulting B.D. a second time. Mother told Kimball she
was released from jail in June and found out the children had been taken to live with Father, but
she did not know where Father lived. Kimball testified she did not believe Mother could provide
for the girls at that time. Mother was collecting cans and redeeming them for money to pay for
the motel room and admitted to using marijuana at least three times per week. Mother, however,
was willing to get “help,” specifically domestic violence counseling.
Kimball also met with P.K. about a week after the girls had been placed with her and
learned that P.K. did not believe Father had assaulted K.A.F. as K.A.F. had reported. After this
meeting, TDFPS sought court approval to place the children in foster care. Following a hearing,
the children were placed in foster care and Mother and Father were ordered to complete services.
Specifically, they were both ordered to complete a drug assessment, submit to random drug
testing and a psychological evaluation, attend individual counseling, and follow through with any
recommendations made by any of the service providers. Additionally, Mother was ordered to
attend domestic violence counseling and complete parenting classes, and Father was ordered to
complete a BIP program.
TDFPS’s goal was initially reunification, and it provided Mother a service plan that
would help her achieve that goal. In addition to completing the court-ordered services, the
service plan required Mother to “stop participating in criminal acts and accept responsibility for
prior criminal activities,” to “demonstrate an ability to provide basic necessities such as food,
clothing, shelter, medical care, and supervision for the children,” and to “maintain a safe and
appropriate home environment for her children.” In the spring of 2012, when neither Mother nor
Father had completed any services, Mother had failed to follow the service plan, and Father had
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not had any contact with the girls since they were removed from his home, TDFPS decided to
seek termination of Mother’s and Father’s parental rights. Hansen, the supervisor, explained
termination would result in permanency and stability for the children. In her opinion,
reunification of the girls with Mother was not possible because of her continued drug use, poor
choices in relationships, and poor parenting skills. And, placement with other family members
was not possible because there were no “fit” family members who could take them. She
explained that Mother’s sister, who had the girls temporarily while Mother was hospitalized and
recovering from the 2008 assault by Father, had an extensive history with TDFPS herself. The
maternal grandparents were unable to take the girls because of health issues and concerns over
inappropriate statements the maternal grandmother made to the girls, and P.K., the paternal
grandmother, was ruled out as an option because she did not believe that Father sexually abused
K.A.F.
TDFPS caseworker Dorene Fox testified she began working with Mother in August 2012,
a few months after the decision to seek termination was made and two months before trial.4 At
the time she began working with Mother, Mother had completed the psychological evaluation,
but not completed the substance abuse assessment, parenting classes, or domestic violence
counseling. Fox provided Mother the contact information for the domestic violence counseling
and parenting classes’ providers and set up the individual counseling and substance abuse
assessment. Mother completed the substance abuse assessment, but did not participate in the
other services. Fox expressed no personal opinion as to whether Mother’s rights should be
terminated, but testified that she believed the level of interest parents show in “getting their
services . . . demonstrates their passion to be with their child.” According to Fox, Mother visited
4
Fox did not work with Father.
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the children consistently “at times” and inconsistently “at other times.” From November 2011 to
the date of trial, Mother visited twenty-seven of forty-two scheduled times.
At the time of trial, K.A.F. was eleven, D.A.F. was nine, and A.L.F. was five. Fox and
A.H., with whom the girls were placed in October 2011 after they were removed from the house
of paternal grandmother P.K., testified D.A.F. and A.L.F. were “thriving” in foster care. D.A.F.
came into foster care needing counseling for the abuse by B.D.; but, at the time of trial, she had
recently completed counseling and was showing no signs of regression. She was described as
“serious” and “reserved,” but happy and a good student. A.L.F. was described as “happy-go-
lucky” and a “silly” little girl who “loves to play and talk all the time.” The girls expressed an
interest in seeing Mother, but D.A.F. also expressed fear they would “get hit all the time” if they
were returned home. TDFPS’s plan for D.A.F. and A.L.F. was adoption, and two families had
expressed an interest in adopting them.
A.H. testified K.A.F. initially did well in her home. K.A.F. talked with A.H. about the
abuse by Father and the babysitter and expressed frustration because she felt no one believed her.
About two weeks after being placed in A.H.’s home, K.A.F.’s behavior started changing. She
became defiant, and encouraged her sisters to be defiant. She also became violent and started
“talking about hurting herself.” She was hospitalized for a couple of weeks in December 2011
after having to be restrained because she was “out of control.” According to A.H., she was
“throwing things against the wall,” “talking about hurting herself,” and asking others to “kill
her.”
After she was released from the hospital, K.A.F. went to a “specialized” placement
center. She remained there for two months before being moved to an “intensive” placement
center, where she was treated for major depressive disorder with recurring or severe psychotic
features, post-traumatic stress disorder (“PTSD”), and oppositional defiant disorder. She
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remained at this placement for about six months and was then moved to a psychiatric hospital in
San Antonio. After spending two weeks at the hospital, she was placed at “Children’s Hope,” a
residential facility where she remained at trial.
According to Fox, the caseworker, K.A.F.’s condition improved after being placed at
Children’s Hope. Her medications were reduced from six to three, her grades improved, she
began “opening up” about the sexual abuse, and was working in counseling on “boundaries” and
feelings of guilt. K.A.F. talked to Mother on the telephone while in San Antonio and also wrote
to her, but at the time of trial, her therapist had recommended K.A.F. have no contact with
Mother. K.A.F.’s prognosis was unknown and Hansen testified TDFPS’s plan was to keep her at
Children’s Hope until she was discharged. Upon discharge, TDFPS planned to recruit an
adoptive parent.
Mother testified she was thirty years old. She attended college, but dropped out after she
met Father and became pregnant with K.A.F. Mother testified her relationship with Father was
violent, and he was arrested for assaulting her not only in 2008, but also in 2005. According to
Mother, Father punched her, pulled her hair, bit her finger, held a gun to her head, hit her with a
cable, and hit her with a computer.
Mother testified her relationship with B.D. was violent also. Although she did not testify
that B.D. was ever arrested for assaulting her, she admitted she was arrested twice for assaulting
him. Both assaults occurred after he had been violent with her. Mother described the February
2011 assault where she cut his neck as self-defense, occurring while B.D. was “severely
assault[ing]” her in the middle of the street. The second assault happened after he slapped her on
the face. Mother testified that she reacted by throwing food at him, and he called the police.
Mother testified she was charged with aggravated assault following the February incident. The
charges, however, were subsequently reduced to misdemeanor assault, and she was placed on
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deferred adjudication community supervision for one year. She was charged with misdemeanor
assault for the second offense, but the case was subsequently dismissed. Mother testified her
relationship with B.D. began in October 2010 and lasted less than a year.
Asked about her drug use, Mother testified that she began smoking marijuana when she
was thirteen years old. She stopped smoking when she was eighteen, before K.A.F. was born,
but started again, after she broke up with Father, and to alleviate symptoms of glaucoma. She
testified she had been smoking consistently since 2010, continued to smoke despite being
ordered not to smoke while on probation, and had last smoked three weeks before trial. She did
not think her use of marijuana was “that serious,” but was asking for help. She testified that she
“mainly smoke[s] because of the situation [she is] going through” but believed that once her kids
came home she would be “too busy” making up time to have a “need for that.”
Asked about K.A.F.’s and D.A.F.’s allegations of sexual abuse, Mother testified she
learned of the incidents from a TDFPS caseworker. She learned of the abuse by Father in
October 2011 and of the abuse by the male babysitter in December 2010. Mother identified the
babysitter as C.J. and stated that she left the girls on July 26, 2010 with C.J.’s wife, who ran a
“babysitting business” in the apartment complex where they lived. At the time Mother dropped
the girls off, C.J. was not there. Mother testified she spoke to K.A.F. after learning of the
incident and believed it occurred, but she did not report the incident to the police because the
caseworker said she would “take care of everything.” Mother learned that B.D. had sexually
abused D.A.F. when she got out of jail following the May 2011 assault on B.D. According to
Mother, she stopped seeing B.D. as soon as she learned about the abuse.
Mother testified she loved the girls, missed them, and wanted them returned to her. She
testified she “failed” the girls, but could now keep them safe and provide for them. She
acknowledged that the abusive and violent relationships she had with Father and B.D. impacted
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her children and it was not in their best interest to be exposed to violence. She also
acknowledged that she had “whipped” the girls on occasions, leaving bruises, and had been
unable to provide for them. She testified that she gave the girls to her mother in 2010 because
she did not have a place to live and was working only part-time and had to collect cans to
survive. She testified that if she could do things differently, she would have stayed in college
and broken up with Father so that she would not have been around the initial violence.
Mother testified she had been “working on [her]self” for about two years and had her “act
together” now. She was in counseling with her pastor at church, had maintained stable housing
since November 2011, and had maintained stable employment since July 2012.5 Mother
recognized she needed to break the pattern of abuse. She testified she was in a BIP program as
part of probation, learned she could not leave bruises when disciplining, and had not been in any
relationship for over a year. She believed she would benefit from parenting classes and further
counseling, but acknowledged she had not completed the parenting classes or counseling she was
ordered to complete. Mother explained that she had problems with the caseworker setting up the
counseling and appropriate parenting classes and would seek help on her own if necessary.
Mother testified she had a “wonderful” relationship with the children and had visited
regularly with D.A.F. and A.L.F. over the past year. The visits she missed, as she explained,
were a result of work or probation conflicts. Mother testified she had not visited K.A.F., but had
received telephone calls and a letter from her.6 She testified that if the girls were returned to her
she would get a bigger apartment. When asked how she would handle K.A.F., she stated she
5
Fox, Mother’s last caseworker, disputed Mother’s testimony regarding her employment. According to Fox, Mother had been fired from
her job shortly before trial.
6
The letter was mailed shortly after the children were placed in foster care. In the letter, K.A.F. states that it “sucks” to be her and it feels
like Mother “let [them] go.” She also tells Mother she loves her and that Mother should “let go” of B.D.
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would “approach[] her with love and acceptance,” would let her know “it was not her fault,” and
would ensure she received the appropriate health care.
Father testified Mother did not use any drugs when they were together. When he and
Mother were together, Mother “fed [the girls], cleaned, and cooked . . . she did everything. All
the basic things.” He thought she was “okay” as a mother and thinks she became “unfit” when
they broke up. From what he heard from TDFPS caseworkers, Mother’s home was, at one point,
like “Woodstock.”
Jeff Napier, a licensed psychologist, conducted the court-ordered psychological
evaluation of Mother on November 16, 2011. He testified a concern existed about whether
Mother could properly supervise the children, and he was tasked with assessing Mother’s
emotional capacity for parenting. He testified Mother described relationship issues with her own
mother and with men. Mother stated her mother physically abused her as a child. Mother
attributed her involvement with TDFPS to her mother and complained that “she likes to call CPS
on me.” She described two significant romantic relationships, one with Father and one with
B.D., and characterized them both as hostile and violent. At the time of the evaluation, Mother
was receiving domestic violence counseling.
Napier testified Mother admitted marijuana use and told him she often smoked marijuana
in the evening to help her sleep. She participated in a drug education class in 2002 at TDFPS’s
recommendation, but found the class only “marginally helpful.”
Napier also testified that Mother did not report any significant amount of parenting stress
but did state K.A.F. was a “little more active and energetic” and that it was difficult at times to
get her to attend to directions.
Napier believed Mother was underreporting her problems and/or shortcomings,
particularly with respect to her drug use and ability to parent. He found it “troublesome” that she
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did not take responsibility “in a lot of the problems that she was describing” and that she
attributed “almost all” the TDFPS allegations to her mom. He was unable to conclude that her
“judgment and reliability relative to parenting is adequate” and recommended parenting classes
and individual counseling. He thought the parenting classes could assist her in “developing and
improving her child-management skills” and the counseling could assist her with her relationship
issues. Napier believed it was “endangering” for the girls to be exposed to continued drug use
and domestic violence because it created a “frightening environment” and could contribute to
negligent supervision.
Karen Stewart, licensed counselor and substance abuse treatment provider, conducted
Mother’s substance abuse assessment in September 2012. Mother reported a history of drug and
alcohol abuse on both sides of her family and admitted she was herself addicted to marijuana.
Stewart testified Mother stated she had last used marijuana two weeks earlier and smoked “due
to the stressors in her life.” Mother talked with her about her issues and showed a lot of
resentment and a co-dependency with abusive men. In Stewart’s opinion, Mother’s actions
reflected low self-esteem. Stewart recommended “[d]rug education, anger management . . .
relapse prevention” and counseling to address “co-dependency, accountability . . . coping skills
and [the] low-self-esteem.” Stewart testified she wanted to be Mother’s counselor, but she
never got the necessary paperwork from TDFPS.
Mother’s mother testified that she “approve[d]” of the way Mother had taken care of the
children. She did not want the children to be “in [TDFP’s] custody” and, if the children were
returned home, she and her husband were available to help. She testified she was a special
education teacher and K.A.F. could come to school with her.
After hearing this and other evidence, the trial court found Mother’s parental rights
should be terminated on four of the eighteen statutory courses of conduct alleged. Specifically,
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the trial court found Mother (1) knowingly placed or allowed the children to remain in conditions
or surroundings which endangered their physical or emotional well-being; (2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct which
endangered their physical and emotional well-being; (3) failed to comply with the provisions of a
court order that specifically established the actions necessary for her to obtain the return of the
children; and (4) used a controlled substance, as defined by Chapter 481 of the Texas Health and
Safety code, in a manner that endangered the health or safety of the children, and after
completion of a court-ordered substance abuse treatment program continued to abuse a
controlled substance. See TEX. FAM. CODE ANN. §161.001(D),(E),(O),(P). The trial court further
concluded termination of Mother’s parental rights was in the children’s best interests. See id. §
161.001(2).
SUFFICIENCY OF THE EVIDENCE
In issues two through five, Mother asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination was in the children’s best interest
and she (1) knowingly placed, or allowed the children to remain in conditions or surroundings
which endangered their well-being; (2) engaged in conduct that was endangering to the children;
and (3) failed to comply with a court order that established the actions necessary for her to get
the children back. Mother does not challenge the trial court’s finding that she used a controlled
substance after completing a treatment program and in a manner endangering to the children.
Generally, an unchallenged finding is binding on us and we do not need to address any
complaints regarding the sufficiency of the evidence to support the unchallenged predicate
grounds. In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.). However, as a
matter of due process, a parent appealing a termination decree has a right to meaningful appellate
review. Id. at 60 (op. on reh’g). Because an affirmative finding that Mother’s rights should be
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terminated based on her placing the children in dangerous conditions or engaging in endangering
conduct could be used to support termination of her parental rights with respect to any future
child she may have,7 we continue our review. Id. at 60-61.
Standard of Review
Because the natural right existing between parents and their children is of constitutional
dimensions, termination proceedings are strictly scrutinized and require the application of the
clear and convincing standard of proof. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
The clear and convincing standard of proof is “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.” TEX. FAM. CODE ANN. § 101.007 (West 2008); In re E.N.C., 384 S.W.3d 796,
802 (Tex. 2012).
A trial court may terminate a parent-child relationship only upon clear and convincing
proof that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas
Family Code and (2) termination is in the child’s best interest. See TEX. FAM. CODE ANN. §
161.001. Though evidence may be relevant to both elements, each element must be proven, and
proof of one does not relieve the burden of proving the other. See In re C.H., 89 S.W.3d 17, 28
(Tex. 2002). While both a statutory ground and best interest of the child must be proven, only
one statutory ground is required to terminate parental rights. See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003).
In reviewing the legal sufficiency of the evidence in a parental termination case, we must
consider all the evidence in the light most favorable to the finding to determine whether a
reasonable fact finder could have formed a firm belief or conviction that its finding was true.
7
See TEX. FAM. CODE ANN. § 161.001(M). That section provides that a trial court may terminate the rights of a parent who “has had his
parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph D or
E or substantially equivalent provisions of the law of another state.” Id.
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E.N.C., 384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume
the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do
so, and we disregard all evidence that a reasonable fact finder could have disbelieved. Id.
(quoting J.F.C., 96 S.W.3d at 266).
In reviewing the factual sufficiency of the evidence in a termination proceeding, we
consider and weigh all the evidence, but give due deference to the fact finder’s resolution of
factual questions. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006). We then determine whether the evidence is such that a fact finder could
reasonably form a belief or conviction about the truth of the allegations against the parent. See
H.R.M., 209 S.W.3d at 108.
Because only one statutory ground is required to terminate parental rights under section
161.001, when, as here, the termination order contains multiple statutory grounds, we may affirm
the trial court’s order on any one ground and a conclusion that termination is in the child’s best
interest. See In re K.W., 335 S.W.3d 767, 769-70 (Tex. App.-–Texarkana 2011, no pet.).
Endangering Conduct
In her third issue, Mother contends the evidence is legally and factually insufficient to
show she engaged in endangering conduct. Endangering conduct is defined as conduct that
exposes a child to loss or injury or jeopardizes a child’s emotional or physical health. Robinson
v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987); Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex. App.—
El Paso 2000, pet. denied)). It is “more than a threat of metaphysical injury or potential ill
effects of a less-than-ideal family environment,” but it does not need to occur in the child’s
presence, be directed at the child, or cause actual injury. See E.N.C., 384 S.W.3d at 803; Boyd,
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727 S.W.2d at 533; Clark v. Clark, 705 S.W.2d 218, 219 (Tex. App.—Dallas 1985, writ dism’d).
Abusive or violent conduct by a parent or other resident of a child’s home as well as conduct that
subjects a child to a life of uncertainty and instability may endanger the physical and emotional
well-being of the child. Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]
2010, pet. denied); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no
pet.). Drug use and its effects on a parent’s life and ability to parent may also establish an
endangering course of conduct. See Walker v. Tex. Dep’t of Family and Protective Servs., 312
S.W.3d 608, 618 (Tex. App.-–Houston [1st Dist.] 2009, pet. denied). If the evidence shows a
voluntary, deliberate, and conscious course of conduct that has the effect of endangering the
child’s physical or emotional well-being, then a finding under section 161.001(1)(E) is
supportable. In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.); In re J.C.,
151 S.W.3d 284, 288 (Tex. App.-–Texarkana 2004, no pet.).
Here, the record shows that, during the ten-year period TDFPS was involved with the
family, TDFPS investigated allegations of negligent supervision and sexual abuse of the
children, domestic violence, and drug use. The domestic violence allegations were recurrent and
continued even after Mother successfully completed domestic violence counseling in 2002 and
2009. The children witnessed the violence and reported the police being called to their home as
a result. Napier, the psychologist who evaluated Mother, testified that it was “endangering” for
the girls to be exposed to domestic violence because it could lead to negligent supervision and it
created a “frightening environment.” Mother, herself, also recognized the violence impacted the
girls. Indeed, the February 2008 referral followed a severe assault of Mother by Father and
K.A.F.’s expression of fear that Father would hurt her.
Further, allegations of Mother’s drug use began in 2009. Although Mother abstained
from smoking marijuana for an eight year period beginning in 2000, she began smoking again in
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2008 to cope with the break-up with Father and to treat a medical condition. She completed a
drug treatment program in 2009, but “relapsed” and began smoking even more often in 2010.
She told Napier she often smoked in the evening to help her sleep and told Stewart, who
conducted Mother’s substance abuse assessment, that she smoked “due to the stressors in her
life.” Consistent with her statement to Stewart, Mother testified at trial that she “mainly smoked
because of the situation [she is] going through.” Although Mother testified she did not think her
use of marijuana was “that serious,” K.A.F. reported she had seen Mother using “weed” and
Mother candidly admitted she smoked in violation of her terms of probation. The smoking was
also in violation of the requirement in her service plan that she “maintain a safe and appropriate
home environment for her children.” Stewart, who met with Mother just two months before trial,
recommended Mother receive drug education. According to Napier, the drug use, like the
exposure to domestic violence, was “endangering” for the girls because it, too, could lead to
negligent supervision. In fact, the children were removed from the home in 2009 because of
concerns that her drug use impaired her ability to properly supervise the children.
Mother’s drug use and choice in men affected not just the girls’ physical well-being but
also their emotional well-being. K.A.F. suffered from post-traumatic stress disorder, was
hospitalized twice during the year leading up to trial, and was then placed in “intensive” care,
where she remained as of the date of trial. D.A.F. required counseling, and though A.L.F.
required no treatment, she told TDFPS investigator Williams that her mom was Father’s wife,
suggesting she had no bond with Mother.
The girls’ well-being was also affected by Mother’s “whippings.” Although no witness
testified Mother physically abused the children, both K.A.F. and D.A.F. expressed fear of being
returned home to Mother because of the “whippings,” and Mother admitted she had “whipped”
the girls on occasions, leaving bruises.
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Viewing these facts under the appropriate standard of review, we conclude a reasonable
fact finder could form a firm belief or conviction that Mother’s violent relationships with Father
and B.D., continued marijuana use, and “whippings” resulting in bruises endangered the
children. Although Mother might not have been violent toward Father and might have been
acting in self-defense when she assaulted B.D., as she contends on appeal, Father and B.D. were
both violent toward Mother, and the children witnessed some of the violence. Evidence of
domestic violence may establish evidence of endangerment. J.I.T.P., 99 S.W.3d at 845.
Moreover, although Mother recognized her relationships with Father and B.D. “were not good
for the children and she want[ed] to change,” she was in a BIP program and had learned she
could not leave bruises when disciplining, and had not been in a relationship in over a year, she
testified at trial that she could benefit from further counseling but failed to complete the domestic
violence counseling that was ordered following the last referral. See J.O.A., 283 S.W.3d at 346
(“evidence of improved conduct, especially of short duration, does not conclusively negate the
probative value of a long history of drug use and irresponsible choices.”).
With respect to the drug use, although Mother contends she smoked marijuana to treat a
medical condition, the record also reflects she smoked to cope with “life stressors.” Further,
although Mother contends she did not smoke around the children, K.A.F. reported she had seen
Mother smoking. We conclude, contrary to Mother’s contention that her smoking did not harm
the children, that by continuing to smoke, even after completing a drug treatment program in
2009, Mother put herself at risk of being impaired and jailed for violating a term of probation
and subjected her children to a life of uncertainty and instability. See Walker, 312 S.W.3d at 617-
18 (“Because [drug use] exposes the child to the possibility that the parent may be impaired or
imprisoned, illegal drug use may support termination under section 161.001(1)(E).”).
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We also conclude that Mother’s combined actions–(a) relationships with Father and B.D.,
even after completing domestic violence counseling in 2002 and 2009; (b) continued drug use,
knowing her parental rights were in jeopardy; and (c) “whippings” that left bruises on the girls–
together established a voluntary, deliberate, and conscious course of conduct that harmed the
children physically and emotionally. See In re A.C., 394 S.W.3d 633, 641 (Tex. App.-–Houston
[1st Dist.] 2012, no pet.) (endangerment finding supported by evidence of Mother’s continued
drug use and admission that such use put child at risk); M.R., 243 S.W.3d at 819 (same -
evidence that child exposed to domestic violence); In re C.L.C., 119 S.W.3d 382, 398 (Tex.
App.-–Tyler 2003, no pet.) (same - evidence of abusive or violent conduct by parent); Robinson,
89 S.W.3d at 686-87 (same – evidence that mother’s illegal drug activity violated terms of
community supervision and service plan). We resolve Mother’s third issue against her. Because
we conclude the evidence is legally and factually sufficient to support the trial court’s finding
that Mother’s rights should be terminated under section 161.001(1)(E), we need not address
Mother’s arguments concerning the remaining statutory findings and turn to the best interest
finding. See K.W., 335 S.W.3d at 770.
Best Interest
In her fifth issue, Mother challenges the trial court’s determination that it was in the
children’s best interest to terminate her parental rights. A strong presumption exists 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).
At the same time, however, prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. See TEX. FAM. CODE ANN. § 263.307(a) (West
2008). In determining whether termination of parental rights is in the child’s best interest, we
may consider the evidence establishing one of the predicate grounds under section 161.001(1),
along with the following factors:
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1. the child’s desires;
2. the child’s present and future emotional and physical needs;
3. the present and future emotional and physical danger to the child;
4. the parenting abilities of the persons seeking custody;
5. the programs available to the persons seeking custody to help promote the best
interest of the child;
6. the plans for the child by those persons seeking custody;
7. the stability of the home or proposed placement;
8. the parent’s acts or omissions that may indicate the existing parent-child relationship
is not a proper one;
9. any excuse for the acts or omissions of the parent; and,
10. the parent’s willingness and ability to provide a safe environment as evidenced by the
child’s age and vulnerabilities; developmental evaluations of the child’s parents, other
family members, and others who have access to the child’s home; any history of
substance abuse by the child’s family or others who have access to the child’s name;
the willingness and ability of the child’s family to effect positive changes within a
reasonable period of time; and adequacy of parenting skills.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); A.C., 394 S.W.3d at 641-42 (citing TEX.
FAM. CODE ANN. § 263.307(b)). No requirement exists that TDFPS prove all these factors, and
the lack of evidence of some factors does not preclude a finding of best interest. A.C., 394
S.W.3d at 642.
In arguing the evidence is insufficient to support the finding that termination is in the
children’s best interest, Mother asserts there is little or no evidence that she was a danger to the
children, of what the children wanted, or of specific plans for the children, but sufficient
evidence exists that K.A.F.’s behavior worsened while in TDFPS’s custody, that Mother had
“cleaned up her act,” and that Mother was regretful of and accepted responsibility for her actions
that led to losing her children.
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Although Mother disputes evidence exists she was a danger to the children, we have
concluded that her relationships with Father and B.D., continued drug use, and treatment of the
children endangered the children. Additionally, although Mother testified she was regretful of
and accepted responsibility for her actions, she also told the psychologist who evaluated her that
her mother was to blame for her long history with TDFPS. This evidence, along with the
evidence of Mother’s endangering conduct, established Mother was not willing and able to
provide the girls with a safe environment, had not entirely “cleaned up” her act, and lacked
appropriate parenting skills.
The record also reflects Mother was unable and unwilling to effect positive changes. For
example, although some evidence was presented that she had difficulty obtaining from TDFPS
the services she needed to be reunified with her children, testimony was presented that she could
have set up some services herself because she had been given the necessary information.
However, she failed to do so and failed to complete the services that were offered. Further,
evidence was presented that Mother had “cleaned up her act” after the 2002 and 2009 referrals,
but had “fallen off the wagon” each time. This evidence combined established the children
would be faced with uncertainty and instability if returned to Mother.
By contrast, testimony established that termination of Mother’s rights provided an
opportunity for the children to have stability and permanency. During their one year stay in
foster care, D.A.F. and A.L.F. thrived. D.A.F. completed counseling and was showing no signs
of regression. The plan for these girls was adoption, and two families expressed an interested in
adopting them. Although K.A.F. suffered from post-traumatic stress disorder, had been
hospitalized twice, and remained in an intensive treatment center at the time of trial, she had
made steady improvement in the one year she had been in foster care. The plan for her was
adoption once she was discharged from the treatment center.
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Applying the appropriate legal standard, we conclude that, from this evidence, the trial
court could have formed a firm belief and conviction that termination of Mother’s rights was in
the children’s best interest. See In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011,
no pet.) (best interest finding supported by parents’ “poor judgment” and constant drug use); In
re C.R., 263 S.W.3d 368, 376-77 (Tex. App.—Dallas 2008, no pet.) (same - parent’s failure to
complete parenting classes and unwillingness to stop using drugs where evidence showed child
needed stability and consistency, was doing well in foster care, and would be adopted); In re
S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (same - drug use, inability
to provide stable home, and failure to comply with service plan). Although Mother correctly
notes that “little or no” evidence was presented regarding the children’s desire, one of the factors
to consider in determining best interest, no requirement exists that TDFPS prove all the factors.
See A.C., 394 S.W.3d at 642. We resolve Mother’s fifth issue against her.
DUE PROCESS VIOLATION
In her first issue, Mother contends she was deprived of fair treatment and due process by
(1) TDFPS’s “global pleading” in which TDFPS alleged “every possible ground for termination,
even though it had no intention of proving most of such grounds;” and (2) TDFPS’s offer of
services when it “never intended to return the children due to the sexual assault on [K.A.F.] by
[F]ather.” Mother asserts the “global pleading” failed to provide her fair notice of TDFPS’s case
and, had she known earlier that TDFPS intended to terminate her rights, “a total different
strategy would [have been] taken.” Mother, however, makes these arguments for the first time
on appeal. To preserve these arguments for review, Mother needed to bring the issue to the trial
court’s attention by timely request, objection, or motion. See TEX. R. APP. P. 33.1; see also In re
L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). Because she failed to do so, her complaint is waived.
See J.F.C., 96 S.W.3d at 304 (“Texas’s preservation of error rules promote the child’s interest in
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a final decision and thus placement in a safe and stable home, because they preclude appellate
courts from unduly prolonging a decision by appellate review of issues not properly raised in the
trial court.”). We resolve Mother’s first issue against her.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her sixth issue, Mother asserts her trial counsel was ineffective. Specifically, she
asserts counsel was ineffective in failing to (1) file a motion to sever the trial of Father from her
trial and (2) properly object to the admission of “the entire CPS report.”
An indigent parent in a termination proceeding in Texas has a statutory right to effective
assistance of counsel. See TEX. FAM. CODE ANN. § 107.013(a)(1) (West Supp.2012); In re M.S.,
115 S.W.3d 534, 544 (Tex. 2003). Claims of ineffective assistance of counsel are evaluated
under the same standards as those set forth for criminal defense counsel in Strickland v.
Washington, 466 U.S. 668, 681 (1984). M.S., 115 S.W.3d at 544-45. To succeed on an
ineffective assistance claim, a parent must first establish her counsel’s performance was
deficient. Id. at 545. Once deficiency has been established, the parent must show counsel’s
deficient performance prejudiced the case. Id.
In reviewing counsel’s performance on appeal, we indulge in a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance, including the
possibility that counsel’s actions were strategic. Id. To overcome the presumption that counsel
provided reasonable assistance, the record must be sufficiently developed and fully support the
allegation; a silent record will not overcome the presumption. See In re J.W., 113 S.W.3d 605,
616 (Tex. App.-–Dallas 2003, pet. denied) (citing Thompson v. State, 9 S.W.3d 808, 813-14
(Tex. Crim. App. 1999)). In analyzing whether counsel’s deficient performance prejudiced the
case, we determine whether a reasonable probability exists that, but for counsel’s deficient
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performance, the result of the proceeding would have been different. M.S., 115 S.W.3d at 549-
50.
The record, here, is silent as to counsel’s strategy. Mother did not file a motion for new
trial and call her trial counsel as a witness to explain his reasons for failing to file a motion to
sever and “properly object” to the admission of “the entire CPS report.” Mother, therefore, has
failed to rebut the presumption that counsel’s conduct fell within the range of reasonable
professional assistance. See J.W., 113 S.W.3d at 616. This failure defeats her ineffectiveness
claim. See id. We resolve Mother’s sixth issue against her.
CONCLUSION
We affirm the trial court’s judgment.
/Carolyn Wright/
121582F.P05 CAROLYN WRIGHT
CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.A.F., D.A.F. On Appeal from the 256th Judicial District
AND A.L.F., CHILDREN Court, Dallas County, Texas
Trial Court Cause No. 08-18472-Z.
No. 05-12-01582-CV Opinion delivered by Chief Justice Wright,
Justices Lang-Miers and Lewis participating.
In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s
judgment.
.
Judgment entered June 14, 2013
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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