in the Interest of A.L.W. and M.M.P., the Children ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00480-CV
In the Interest of A.L.W. and M.M.P., § From the 393rd District Court
the Children
§ of Denton County (2010-61410-393)
§ November 8, 2012
§ Opinion by Justice Gabriel
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Gabriel
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00480-CV
IN THE INTEREST OF A.L.W. AND
M.M.P., THE CHILDREN
----------
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
----------
MEMORANDUM OPINION1
----------
Appellants D.W.P. (Father) and E.W. (Mother) appeal the trial court’s
judgment terminating their parental rights to their child, M.M.P. (Maria). 2 Mother
also appeals the termination of her parental rights to her child A.L.W. (Abigail).
Appellant D.P. (Grandmother) appeals the trial court’s judgment granting
1
See Tex. R. App. P. 47.4.
2
We use aliases for the children and their relatives throughout this opinion.
See Tex. R. App. P. 9.8(b)(2).
2
managing conservatorship of Maria to A.M. (Ann Maroney) and B.M. (Bob
Maroney). We affirm.
Background Facts
Mother gave birth to Abigail in October 2006, during her marriage to Z.W.
(Ex-Husband). They later divorced, and Mother began dating Father. The
Department of Family and Protective Services (DFPS or the Department) was
first called to Mother and Father’s apartment in February 2009 for concerns over
a domestic dispute. Police found marijuana in the parents’ bathroom, which
Mother said was hers. Mother was arrested for possession of the marijuana.
DFPS closed its case because Mother sought treatment for anxiety and bipolar
disorder from Denton County Mental Health and Mental Retardation (MHMR).
Mother eventually became pregnant with Maria. During her pregnancy
with Maria, Mother’s parents divorced, and Mother moved in with her aunt and
uncle, the Maroneys. After a few weeks, Mother left the Maroneys and moved in
with Father and his parents. Mother gave birth to Maria in December 2009.
In July 2010, DFPS was notified over concerns of drug use by both
parents.3 Mother and Father were asked to take drug tests, which they refused.
Mother then moved to Nacogdoches, and Father followed shortly thereafter. In
October 2010, after Mother tested positive for ecstasy, DFPS took custody of the
3
It is unclear from the record how many cases DFPS has opened on the
parents. Father told First Steps in his chemical dependency evaluation that this
was his fourth case with DFPS.
3
children and placed Abigail with her father, Ex-Husband, and Maria with Father’s
parents, Grandmother and Grandfather. The day after removal, Father tested
positive for cocaine, marijuana, and methamphetamine.
The parents then moved to Austin, where Father had found work. While
living in Austin, the parents were arrested for public intoxication and possession
of drug paraphernalia. In March 2011, Mother and Father moved into an RV
rented from Father’s parents in Denton. After a few weeks, they moved into a
house in Denton also rented from Father’s parents.
Sometime around April 2011, Grandmother and Grandfather took Maria to
Nacogdoches to see Mother’s grandmother. Mother and Father followed in their
own car to empty a storage unit. The parents met up with Grandmother and
Grandfather at Mother’s grandmother’s apartment. This visit had been
specifically denied by DFPS. When the Department found out about the
Nacogdoches trip, they moved Maria to the Maroneys.
In March 2011, a man matching Father’s description stole clothes from a
Buckle store in Vista Ridge Mall. A witness got the license plate of the car the
man left in, which matched Grandmother’s car. In June 2011, Mother and Father
were detained at a Wal-Mart because they switched tags on some bicycles.
They were cited for trespass, but the police officers arrested Father for the
Buckle theft.
DFPS moved for termination because the parents had not made sufficient
progress on their service plan. Both Grandmother and the Maroneys intervened,
4
requesting managing conservatorship. A jury found by clear and convincing
evidence that Mother and Father had engaged in conduct or had knowingly
placed Maria with persons who engaged in conduct that endangered her physical
or emotional well-being; that Mother and Father had knowingly placed or
knowingly allowed Maria to remain in conditions or surroundings that endangered
her physical or emotional well-being; that Mother and Father had failed to comply
with the provisions of a court order that specifically established the actions
necessary for them to obtain Maria’s return; that Mother and Father had used a
controlled substance in a manner that endangered Maria’s health or safety and
had failed to complete a court-ordered substance abuse treatment program, or
after completion of such a program, had continued to abuse a controlled
substance; and that termination of Mother and Father’s parental rights to Maria
was in her best interest. The jury also found that Mother had engaged in conduct
or had knowingly placed Abigail with persons who engaged in conduct that
endangered Abigail’s physical or emotional well-being; that Mother had
knowingly placed or had knowingly allowed Abigail to remain in conditions or
surroundings that endangered her physical or emotional well-being; that Mother
had failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain Abigail’s return; that Mother
had used a controlled substance in a manner that endangered Abigail’s health or
safety and had failed to complete a court-ordered substance abuse treatment
program, or after completion of such a program, had continued to abuse a
5
controlled substance; and that termination of Mother’s parental rights to Abigail
was in her best interest. The jury found that the Maroneys should be awarded
managing conservatorship of Maria.4 Mother, Father, and Grandmother filed this
appeal.
Standard of Review
A parent’s rights to “the companionship, care, custody, and management”
of his or her children are constitutional interests “far more precious than any
property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase 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. 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
4
The jury was not asked who should be granted managing conservatorship
of Abigail. In the final order of termination, the trial court granted Ex-Husband
managing conservatorship of Abigail.
6
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2012); 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); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort
Worth 2000, pet. denied).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also § 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 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 standards for termination and
modification).
7
Discussion
1. Intervention by Grandmother
In her first issue, Grandmother argues that the trial court erred by failing to
rule on her petition to intervene. Grandmother filed a “Petition in Intervention for
Conservatorship and Request for Appointment as Temporary Possessory
Conservator.” DFPS filed a motion to strike the intervention and requested that
the trial court dismiss Grandmother as a party to the suit. After a hearing on the
motion to strike on June 8, 2011, the trial court signed an order that stated,
[T]he Court at this time makes no finding regarding the intervention,
takes the same under advisement, and reserves the determination of
this issue to such time as the court determines a final determination
should take place.
. . . [T]he Court grants the party seeking intervention,
[Grandmother], the right to appear in the Court through counsel in
this cause, the right to receive notice of all proceedings, the right to
conduct reasonable discovery, and the obligation to respond to
discovery, the same as a party to this action, without specifically
finding that [Grandmother] is a party.
Grandmother argues that the trial court erred by failing to find that she had
standing to intervene. However, Grandmother actively participated at trial
through her counsel, introduced evidence, called witnesses, and had the
opportunity to cross-examine all other witnesses. She was listed in the jury
charge for the jury to consider her as the possible managing conservator of
Maria. Grandmother has thus failed to demonstrate what harm she suffered by
the trial court’s refusal to make a finding regarding her motion for intervention.
See Tex. R. App. P. 44.1(a) (stating that no judgment may be reversed on appeal
8
unless the error complained of probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting her
appeal). We therefore overrule Grandmother’s first issue.
2. Intervention by the Maroneys
In her second issue, Grandmother argues that the trial court erred by
granting the Maroneys’ petition to intervene. We review a trial court’s order
granting or denying a motion to strike an intervention under an abuse of
discretion standard. In re A.M., 60 S.W.3d 166, 168 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (citing Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982)).
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or principles;
in other words, we must decide whether the act was arbitrary or unreasonable.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d
835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court
abused its discretion merely because the appellate court would have ruled
differently in the same circumstances. E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its decision on
conflicting evidence and some evidence of substantive and probative character
supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
9
The Maroneys filed a petition in intervention on June 17, 2011. Father filed
a motion to strike the Maroneys’ petition. A hearing was held on Father’s motion
and the trial court denied the motion to strike intervention.
Section 102.004(b) of the family codes states,
[T]he court may grant a grandparent or other person deemed by the
court to have had substantial past contact with the child leave to
intervene in a pending suit filed by a person authorized to do so
under this subchapter if there is satisfactory proof to the court that
appointment of a parent as a sole managing conservator or both
parents as joint managing conservators would significantly impair the
child’s physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b) (West 2008). Grandmother argues that the
Maroneys did not have substantial past contact with Maria.5 “Substantial past
contact” is not statutorily defined, and case law has not delineated any
parameters for the amount of contact an intervenor is required to have had with
the child. However, courts have considered where the child has resided in their
analysis of substantial contact. See, e.g., In re N.L.G., 238 S.W.3d 828, 831
(Tex. App.—Fort Worth 2007, no pet.) (upholding intervention by foster parents
when child had lived with them for about fourteen months); A.M., 60 S.W.3d at
169 (upholding trial court’s implied finding that intervenors had substantial
contact with the child when they had fostered the child for seven months at the
5
Grandmother also argues that the Maroneys are not within three degrees
of consanguinity. Consanguinity, however, is relevant only to subsection (a) of
the statute. See Tex. Fam. Code Ann. § 102.004(a) (allowing a grandparent “or
another relative of the child related within the third degree by consanguinity” to
file an original suit requesting managing conservatorship). The Maroneys did not
file an original suit but intervened in the suit filed by DFPS.
10
time they filed their plea in intervention and had fostered the child for another
seven months by the time their standing to intervene was challenged).
Maria was placed with the Maroneys on May 2, 2011. At the time the
Maroneys intervened, Maria had been living in their house fulltime for almost
seven weeks. While the length of time is shorter than in many cases, it is not so
short that it could not be seen as substantial. Cf. In re C.M.C., 192 S.W.3d 866,
872 (Tex. App.—Texarkana 2006, no pet.) (holding that intervenors did not have
substantial past contact with the children when they had only met the older child
twice and had never met the younger child).
Since the Texas Legislature passed section 102.004(b) of the family code
in 1995, there has been a new, more relaxed standard for determining standing
based on substantial past conduct in a termination proceeding such as this. See
Tex. Fam. Code Ann. § 102.004(b); In re N.L.G., 238 S.W.3d at 831. We believe
section 102.004(b) gives the trial judge the discretion to determine whether those
who undertake the day-to-day supervision of a child, her activities, and most of
the functions ordinarily associated with legal custody have substantial past
contact to confer standing to intervene. Sound policy supports this relaxed
standard when managing conservatorship is already an issue in the case. See In
re M.T., 21 S.W.3d 925, 927 (Tex. App.—Beaumont 2000, no pet.) (“Sound
policy underlies the Legislature’s creation of a relaxed standing rule subject to
court discretion for intervention in an existing suit.”). The child’s best interest is
the predominant issue before the court, and allowing the intervention of parties
11
who wish to adopt the child may enhance the trial court’s ability to adjudicate that
issue. See N.L.G., 238 S.W.3d at 830. We therefore cannot say that the trial
court’s decision was so arbitrary or so unreasonable so as to constitute an abuse
of its discretion. See In re Hidalgo, 938 S.W.2d 492, 495 (Tex. App.—Texarkana
1996, no writ) (upholding stepgrandmother’s intervention when child had lived
with stepgrandmother for just over two months and she “had been close, both
emotionally and physically, to the child since her birth”). We overrule
Grandmother’s second issue.
3. Failure to sever issues
In her third issue, Grandmother argues that the trial court erred by denying
motions to sever issues in this case. Both Mother and Father filed a motion to
sever issues. The record contains an order stating that a hearing was held and
the trial court denied Father’s motion. Grandmother claims that she joined in the
motions “on the date of the hearing,” but there is no written motion in the record,
and we received no reporter’s record of the hearing.
The trial court has broad discretion in determining whether to sever a
claim. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
658 (Tex. 1990). A claim is severable if (1) the controversy involves more than
one cause of action, (2) the severed claim is one that would be the proper
subject of a lawsuit if independently asserted, and (3) the severed claim is not so
interwoven with the remaining action that they involve the same facts and issues.
Id.
12
Grandmother argues that the parents should have had separate trials so
that they would not “be tried on the mistakes or acts of the other parent.”
Grandmother claims that “there was prejudice because of the very nature of
someone who does drugs” and that Father’s criminal history “placed him at odds
with the other parties.” One of DFPS’s bases for termination of Mother and
Father’s parental rights was that they had knowingly placed or knowingly allowed
the children to remain in conditions or surroundings that endangered their
physical or emotional well-being and that they had engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered their physical or emotional well-being. DFPS presented evidence
that both parents were aware of the other’s drug use, and even used drugs
together, yet each continued to allow the other parent to care for the children.
There was also evidence that Mother was aware of Father’s criminal history and
may have engaged in criminal conduct with him. The trial court could have
reasonably concluded that evidence of one parent’s conduct was relevant to the
issue of whether the other parent had knowingly placed the children with persons
who engaged in conduct that endangered their physical or emotional well-being
as well as to the issue of the children’s welfare with both parents and that these
issues were sufficiently interwoven to justify a joint trial. See Holmes v. Tex.
Dep’t of Protective & Regulatory Servs., No. 03-01-00325-CV, 2002 WL
1727384, at *2 (Tex. App.—Austin Jul. 26, 2002, pet. denied) (not designated for
publication) (upholding trial court’s refusal to sever when one parent’s actions
13
were relevant to the grounds for terminating the other parent’s parental rights); In
re Caballero, 53 S.W.3d 391, 396–97 (Tex. App.—Amarillo 2001, pet. denied)
(holding that the trial court did not abuse its discretion by denying severance
when questions regarding the child’s welfare under care of both parents were
sufficiently intertwined). We cannot say that the trial court abused its discretion
in refusing to sever the issues, and we overrule Grandmother’s third issue.
4. Failure to grant a mistrial
In Grandmother’s fourth issue, she argues that the trial court erred by not
granting a mistrial after it failed to strike testimony regarding photographs that
she alleges were improperly admitted. We review the denial of a motion for a
mistrial by an abuse of discretion standard. See Schlafly v. Schlafly, 33 S.W.3d
863, 868 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
“The admissibility of a photograph is conditioned upon its identification by a
witness as an accurate portrayal of the facts, and on verification by that witness
or a person with knowledge that the photograph is a correct representation of
such facts.” Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314–15 (Tex.
1987). “The predicate for admissibility need not be laid by the photographer, the
person photographed, or even a person who was present when the photograph
was taken, but any witness who observed the object or scene depicted in the
photograph may lay the predicate.” Kessler v. Fanning, 953 S.W.2d 515, 522
(Tex. App.—Fort Worth 1997, no pet.). All that is necessary is testimony from a
14
witness with personal knowledge that the photographs accurately depict what
they are “claimed to be.” Tex. R. Evid. 901(b)(1); Kessler, 953 S.W.2d at 522.
During trial, Mother was questioned about the trip to Nacogdoches.
Mother testified that when Grandmother and Maria were leaving Mother’s
grandmother’s apartment, Father walked out with his parents and Maria while
Mother remained upstairs. The Maroneys showed Mother a picture of Father,
Grandfather, and Grandmother, who was carrying Maria, walking down the front
steps of a building. The Maroneys asked, “After looking at those pictures,
ma’am, does that accurately depict the scene in Nacogdoches on that date and
time that you are referring to?” Mother responded, “Yeah. I was upstairs visiting
and they are leaving.” Grandmother objected, and the trial court struck
everything after “Yeah.” The Maroneys then offered the photographs into
evidence. Grandmother objected, and the trial court overruled the objection and
admitted the photographs.
Later, outside of the jury’s presence, Grandmother cross-examined Mother
on her knowledge of the photographs. Mother testified that she was not in the
pictures, was not present when the pictures were taken, and had no personal
knowledge that they accurately depicted what they purported to represent. The
trial court said,
What we got here is a disputed issue of fact. At one point the
witness says, yes, that it is an accurate depiction, which is the only
requirement you have to do. They don’t have to take the picture.
They don't even have to be present when the picture is made. All[]
they have to say is that it is an accurate depiction. And but on
15
redirect—or [Grandmother] makes a telling cross-examination, but
that’s what it is at this point. We have a witness that contradicts
herself. The jury can decide which one is true. They stand
admitted.
Grandmother moved for a mistrial, which was denied.
The trial court did not err in admitting the photographs. Mother testified
she was in the apartment building at that time and had seen Father,
Grandmother, Grandfather, and Maria leave at the same time. She testified that
the photograph accurately depicted the departure. Further, Father testified that
he walked out of the building with his parents and Maria.6 Grandmother also
testified that the photographs showed them leaving the apartment building and
that she was “getting [Maria] away from [Father].” The photographs showed
nothing more than what was established through Father and Grandmother’s
testimony. Thus, Grandmother did not demonstrate that the court’s ruling was
erroneous. See Roberson v. Collins, 221 S.W.3d 239, 243 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (upholding court’s ruling admitting evidence because the
ruling was not erroneous and the appellant did not show that the ruling probably
6
Father was asked,
Q. Okay. Were there times that you were walking together
when coming out of the building?
A. Yes.
Q. And why was that?
A. Because my daughter was there and I refused to just walk
away from her, you know. Like, I could put her in the car.
16
caused the rendition of an improper judgment). Because the photographs were
properly admitted, the trial court did not abuse its discretion by denying
Grandmother’s motion for mistrial based on the photographs’ admission. We
overrule Grandmother’s fourth issue.
5. Hearsay
In her fifth issue, Grandmother argues that the trial court erred in admitting
evidence which contained hearsay. Ashton Moore, a conservatorship specialist
for DFPS, had been assigned to Mother and Father’s DFPS case in March 2011.
During her testimony, DFPS offered Petitioner's Exhibit 45, the parents’
Permanency Plan and Progress Report from January 2011. Moore was
questioned,
Q. And is that a stamped copy of a permanency plan and
permanency progress report?
A. Yes.
Q. And was that part of your case file?
A. It was.
Q. And do you keep that in the normal course of business
with—as a caseworker on that case?
A. Yes.
Grandmother objected first as to hearsay, and the trial court overruled her
objection. DFPS clarified that they were offering the exhibit as a business
record. Grandmother further questioned Moore,
17
Q. Do you have personal knowledge as to who prepared that
document?
A. I recognize the signatures.
Q. Do you know whether those people had knowledge of the
actual facts that are reported in that?
A. They would have.
Q. Is that your opinion, or is that something you actually
know?
A. That would be something I know based on my experience
with [DFPS].
....
Q. Were the notations in that document made close in time to
the time the information was provided?
A. It would have been, yes.
Q. Is all that information provided by employees or people
under the control of your department?
A. No. It would have been provided by—it would have been
compiled from reports we received from service providers and our
experience with the family.
Q. So it would have been from outside providers that are not
under the control of the Department?
A. It would have been from everybody.
Grandmother then objected that the file was an improper business record. The
trial court overruled the objection, stating, “It’s similar to a business record.”
On appeal, Grandmother argues that the trial court’s comment that the file
was “similar to a business record” means that the file did not fall within the
18
business records exception to hearsay. The business records exception has four
requirements: (1) that the records were made and kept in the course of a
regularly conducted business activity, (2) that it was the regular practice of the
business activity to make the records, (3) that the records were made at or near
the time of the event that they record, and (4) that the records were made by a
person with knowledge who was acting in the regular course of business. See In
re E.A.K., 192 S.W.3d 133, 141 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). Moore testified that the permanency plan was made and kept in the
regular course of her business, that the records were made near the time of the
events recorded, and that the records were compiled by a person with knowledge
who was acting in the regular course of business. The permanency plan was
thus properly admitted under the business records exception. Further, beyond
the conclusory statement that the admission of the documents was “not without
harm,” Grandmother fails to demonstrate how she was harmed by the admission
of the file. See In re C.J., No. 04-06-00132-CV, 2006 WL 1751211, at *2 (Tex.
App.—San Antonio June 28, 2006, no pet.) (mem. op.) (refusing to find error in
the admission of the State’s business records when the father did not explain
how the admission of three exhibits resulted in harm in view of the evidence that
was presented). We overrule Grandmother’s fifth issue.
6. Incomplete record
In her sixth issue, Grandmother argues that the failure of the court reporter
to provide a complete record is a reversible error. Grandmother claims that the
19
lack of the reporter’s record for the hearing on DFPS’s motion to strike
Grandmother as an intervenor impeded her ability to present her first issue on
appeal. The order on DFPS’s motion states that a record of the hearing was
made, but this court did not receive a record of that hearing. However, as we
noted above, the trial court’s order states that the trial court made “no finding
regarding the intervention” at that hearing and “reserve[d] the determination of
this issue to such time as the court determine[d] a final determination should take
place.” Grandmother also argues that the reporter’s record of the hearing on the
Maroneys’ intervention was necessary for her second issue. The order denying
Father’s motion to strike the Maroneys does not recite that a record was made.
An appellant is entitled to a new trial under the rules of appellate procedure
if she has timely requested a reporter’s record, but through no fault of her own, a
significant portion of the recording has been lost or destroyed, and the lost or
destroyed portion is necessary to the appeal’s resolution and cannot be replaced.
Tex. R. App. P. 34.6(f). Grandmother timely requested the reporter’s record. But
there is no evidence that the record has been lost or destroyed. There is also no
indication that a record was made of any hearing that may have taken place on
Father’s motion to strike the intervention of the Maroneys. Grandmother makes
a slight reference to this in her sixth issue with no citation to support her position
that a record ever existed or that it was lost or stolen.
But even assuming that the record is lost or destroyed, Grandmother has
not demonstrated that the missing portion is necessary to the resolution of her
20
appeal. Regarding Grandmother’s intervention, the trial court made no findings
during or after the hearing, and Grandmother fully participated at trial. As to the
Maroneys’ intervention, we conclude that a review of a transcript that may never
have existed was not necessary to our determination that the trial court did not
abuse its discretion by denying the motion to strike the Maroneys’ intervention.
Because we were able to resolve Grandmother’s first and second issues without
the need of the missing reporter’s records, Grandmother has not met the
statutory requirements for a new trial under Rule 34.6(f). See Gavrel v.
Rodriguez, 225 S.W.3d 758, 761 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied) (“If the missing portion of the record is not necessary to the appeal’s
resolution, then the loss of that portion of the record is harmless under the rule
and a new trial is not required.”). We overrule Grandmother’s sixth issue.
7. Testimony by the attorney and guardian ad litem
In Mother’s and Father’s third issues, they argue that the trial court erred in
allowing Deborah Boone, who served in the dual role of attorney ad litem and
guardian ad litem for the children, to testify. An attorney serving in the dual role
of guardian ad litem and attorney ad litem may not testify except as authorized by
Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. Tex. Fam.
Code Ann. § 107.007(a)(4) (West 2008). At trial, Boone requested to call herself
to testify in the narrative. The court asked twice if there was any objection, and
no one objected. Father only requested that Boone be sworn so that he could
cross-examine her.
21
Generally, failure to object in the trial court waives the issue on appeal.
See Tex. R. App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991)
(op. on reh’g). However, Mother and Father argue that allowing the guardian ad
litem to testify is fundamental error. Fundamental error requires no trial court
predicate for appellate review. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003),
cert. denied, 541 U.S. 945 (2004). Fundamental error exists in those instances
in which error directly and adversely affects the interest of the public generally,
as that interest is declared by the statutes or constitution of our state, or
instances in which the record affirmatively and conclusively shows that the court
rendering the judgment was without jurisdiction of the subject matter. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
However, because of “strong policy considerations favoring preservation,”
the supreme court has called fundamental error “a discredited doctrine.” B.L.D.,
113 S.W.3d at 350 (quoting Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982)
(per curiam)). It is used only in rare circumstances, such as when the record
shows on its face that the court lacked jurisdiction, and in juvenile delinquency
cases. Id. The supreme court in B.L.D. noted that fundamental error is applied
in juvenile delinquency cases based on the “quasi-criminal” nature of those cases
and that “this rationale does not support applying the criminal fundamental-error
doctrine to parental rights termination cases.” Id. at 351 (declining to extend the
fundamental-error doctrine to unpreserved charge errors in termination cases);
see also In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003), cert. denied, 541 U.S.
22
1043 (2004), (stating that in the context of parental rights termination, “adhering
to our preservation rules isn’t a mere technical nicety; the interests at stake are
too important to relax rules that serve a critical purpose”). Courts have also
declined to apply fundamental error to claims regarding constitutionality of
termination proceedings. See In re R.B., 225 S.W.3d 798, 802 (Tex. App.—Fort
Worth 2007, no pet.) (holding that appellant parents’ claim that termination of
their rights was unconstitutional was not fundamental error and could not be
asserted for the first time on appeal).
Father cites to Willis v. Premier Ins. Co., 442 S.W.2d 912 (Tex. App.—Fort
Worth 1969, no writ), for the proposition that allowing the testimony of a non-
competent witness is an appropriate issue in which to apply the fundamental-
error doctrine. Willis does not say that. Willis held that the trial court’s dismissal
of a case for a witness’s willful failure to answer cross-interrogatories was not a
fundamental error. Id. at 914. It was not fundamental error because, the
appellate court stated, fundamental error is limited “to situations where (1) the
public interest is adversely affected, (2) the trial court was without jurisdiction of
the subject matter, [or] (3) the parties had no justiciable interest.” Id. In that
case, “[o]nly the rights of the plaintiff and defendant were involved. The public
interest was not involved. The parties to the suit did have a justiciable interest.
The court had jurisdiction of the subject matter.” Id.
Likewise, we do not believe fundamental error is applicable here. The
public interest was not involved and only the parties’ rights were at issue. We
23
decline to apply the fundamental-error doctrine to this issue and we overrule
Mother’s and Father’s third issues. See In re S.G., No. 13-05-00155-CV, 2005
WL 1831962, at *1 (Tex. App.—Corpus Christi Aug. 4, 2005, no pet.) (mem. op.)
(following B.L.D. and declining to apply fundamental-error doctrine in a
termination case to an unpreserved complaint of “repeated references to
uncharged acts of prostitution”).
8. Statements by trial judge
In Father’s second issue and Mother’s fourth issue, they complain that the
trial judge erred when he made a statement that Mother’s behavior during trial
was “important” for the jury to see. While DFPS’s attorney was questioning
Father about his drug use, she stopped in the middle of a question and said,
“Your Honor, if I may, could you please ask [Mother] to refrain from her waiving
of the papers and making comments?” The trial court responded, “No. I think it’s
important the jury see that.” No party objected.
Mother and Father make different arguments regarding preservation of the
issue. Mother argues that the trial judge’s comment was fundamental error.
Father argues that under rule 605 of the rules of evidence, no objection was
needed to preserve the issue. See Tex. R. Evid. 605. Rule 605 states, “The
judge presiding at the trial may not testify in that trial as a witness. No objection
need be made in order to preserve the point.” Id. However, the trial judge’s
statement in this case was not testimony; he did not testify as to disputed facts in
this case, he commented on Mother’s behavior during trial. See In re M.S., 115
24
S.W.3d 534, 538 (Tex. 2003) (distinguishing judicial testimony from a judicial
comment on the weight of the evidence but noting that both are forms of
proscribed judicial influence). “[J]udicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.” Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 240–41 (Tex. 2001). Furthermore, expressions of
impatience, dissatisfaction, annoyance, and even anger do not establish bias or
partiality. Id. at 240.
Mother cites to Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000),
for the proposition that a judge’s comments are fundamental error. Blue is a
criminal case, and as we discussed above, fundamental-error doctrine has
developed differently in civil and criminal case law. See B.L.D., 113 S.W.3d at
351. Further, the judicial comment in Blue (stating to the jury that the defendant
had considered a plea bargain) “vitiated the presumption of innocence” and could
allow a juror to “assume that the judge [knew] something about the guilt of the
defendant that the juror [did] not.” Blue, 41 S.W.3d at 132. Such a comment is
fundamental error because it cannot be rendered harmless by proper instruction.
See Dow Chem. Co., 46 S.W.3d at 241 (“[O]bjection to a trial court’s alleged
improper conduct or comment must be made when it occurs if a party is to
preserve error for appellate review, unless the conduct or comment cannot be
rendered harmless by proper instruction.”) (citing State v. Wilemon, 393 S.W.2d
816 (Tex. 1965)). Both parents note only that the judge’s comment
25
“communicat[ed] to the jury that [he] found Mother’s behavior important.” They
do not complain that the comment communicated that the judge found Mother’s
behavior improper or indicative of her ability to protect and care for her children.
Neither Mother nor Father present any argument that a proper instruction could
not render the remark harmless. We therefore decline to apply the fundamental-
error doctrine in this case, and we overrule Father’s second issue and Mother’s
fourth issue.
9. Best interest
In Father’s first issue and Mother’s first and second issues, they argue that
the evidence is factually insufficient to support the jury’s finding that termination
of their parental rights was in the children’s best interest.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the verdict with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
termination of the parent-child relationship would be in the best interest of the
children. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of
the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
26
There is 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). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the
child;
(4) whether the child has been the victim of repeated harm after the
initial report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s
home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;
27
(12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the
family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
28
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
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.
The evidence
Abigail was four years old at the time of trial, and Maria was almost two
years old. See Tex. Fam. Code Ann. § 263.307(b)(1). Father’s criminal history
dates back to 2005. See id. § 263.307(b)(3). In June 2005, he was charged with
an accident involving damage to a vehicle. In September 2005, he was charged
with criminal trespass of his girlfriend’s house. Father was charged with failure to
appear on the previous charges in December 2005. In June 2006, he was
charged with evading arrest. He received probation, which was revoked after
two assaults on officers. He served ninety days in jail for the assaults starting in
October 2006. In 2008, Father served 40 days for driving while intoxicated.
29
On February 11, 2009, police were called to Mother and Father’s house for
a complaint of a domestic dispute. The parents admitted that marijuana was in
the house, and a search revealed drug paraphernalia in the bathroom. Mother
admitted that the paraphernalia was hers; Father denied owning any of it.
Mother was arrested at that time for possession of marijuana.
Mother and Father were arrested in Round Rock, Texas in March 2011,
after being found asleep in their vehicle. Father testified that he did not recall
being found unconscious in his car, but he remembered waking up in jail. The
police had found a needle, a pill bottle, and two soft drink cans with a black
substance in or on them. The police also found $3,500 in one hundred dollar
bills in Mother’s purse. Both Mother and Father were later indicted for felony
possession of heroin and cocaine after the substances were tested. At the time
of termination, the charges were still pending.
Amanda Hoon, the assistant manager of a Buckle store in Vista Ridge
Mall, testified at trial that in March 2011, Father ran into the store, grabbed
handfuls of clothing, and ran out of the mall. Hoon followed him outside, where
she saw him get into a white Nissan Sentra. She jumped in the car after him.
Father pushed her out, and the car ran over her leg. The Buckle manager also
followed Father out and saw that he had a knife on him. Father and the driver
escaped, but a witness got the license plate number of the car.
In June 2011, Mother and Father were cited for criminal trespass at a Wal-
Mart for allegedly switching the tags on some bicycles. Father testified they were
30
“[j]ust playing around.” The police officer called to the store testified that Mother
and Father told him that they had switched the tags on some bicycles, but they
had paid the correct price for the bicycles that they had purchased. The officer
discovered that Father had an outstanding warrant for the robbery at the Buckle
store, and he was arrested. Father had a felony indictment for aggravated
robbery pending at the time of trial. The officer described Mother as
“argumentative” while he was arresting Father.
Dr. Mark Foster completed the psychological evaluations of Mother and
Father. See id. § 263.307(b)(6). His report on Father noted that Father provided
inaccurate information regarding his criminal history and that Father was
“frequently evasive in answering questions.” He testified that Father’s results
indicated “somebody [who] has a number of significant antisocial personality
features.” He described Father’s responses as similar to people who are
“immature, narcissistic, and self-indulgent” and noted that Father is probably
viewed by others as “irritable, sullen, and argumentative.” Dr. Foster described
people with similar results to Father’s, stating,
They are very high risk of abusing substances. They tend to focus
on their needs to an excessive extent. They tend to have very poor
impulse control. They tend to be very unreliable and have difficulty
maintaining employment. They have a lot of conflict in their
relationships, particularly within their relationships with persons that
are perceived as authority figures. It might be parents. It may be law
enforcement. That sort of thing.
Dr. Foster said that this type of people seek treatment for their behaviors as “an
attempt to avoid the consequences of their actions.” He reported “a poor
31
prognosis for recovery” and that people like Father “are frequently asked to leave
substance abuse treatment programs due to persistent denial of their treatment
issues or rules violations.” He expected that short-term treatment would not be
effective for Father, and he defined short-term as “a couple of years.” He stated
that Father is “probably unrealistic and grandiose in his self-appraisal” and would
be “unlikely to be receptive to traditional counseling or psychotherapy.”
Dr. Foster testified that turning to heroin “is not a normal response to
having your children removed,” and that such behavior “would confirm the test
results, that this is somebody that has very poorly developed coping skills.” As
for Father’s parenting abilities, Dr. Foster testified,
I would expect him to have a lot of difficulties meeting the
responsibilities of being an effective parent. I would expect him to
behave irresponsibly, to put his needs before the needs of the child.
I would expect a great deal of moodiness which would undermine
the child’s security. I would expect him to place the child at risk.
Father did not disclose to Dr. Foster that he was taking methadone. Dr. Foster
stated that Father was “unable or unwilling to acknowledge how his substance
misuse impair[ed] his ability to provide a safe and nurturing environment for
[Maria]. His substance misuses pose[d] a significant risk to [Maria]’s safety.” Dr.
Foster noted that although Father was in treatment, there was “little evidence that
[Father’s] denial of his substance misuse issues [had] been addressed.”
As to Mother’s test results, Dr. Foster testified that Mother’s IQ was “at the
bottom of the average range.” Mother’s reading skills were between the ninth
and tenth grade level, and “her responses reflected a very high risk of continued
32
substance abuse use, [and] a good deal of denial with regard to her substance
abuse issues.” He described Mother’s personality as “more of a narcissistic
personality, meaning . . . a personality characterized by high level of immaturity
and self-centeredness.” He testified,
Narcissistic individuals have a great deal of difficulty appreciating
how their choices affect others, particularly children. Their needs
tend to come first. They tend to abandon their responsibilities very
quickly. One thing that’s consistent with antisocial personality
features is they also are very unlikely to seek treatment on their own
accord; that is, they usually enter treatment as a result of pressure
from family, friends or the authorities.
Dr. Foster testified that Mother did not indicate to him that she believed
she had a substance abuse problem. He noted that Mother
maintain[ed] a high level of denial with regard to her substance
misuse issues and its impact on her ability to parent effectively. Her
continued denial despite being arrested on substance and
possession charges is reason for concern. Her failure to complete
the conditions of her probation is also reason for concern. There is a
high risk of relapse among persons with her pattern of responses in
history. It is common for persons like [Mother] [to] be asked to leave
substance use treatment programs due to their lack of cooperation.
Her negative treatment attitudes pose a significant risk to both her
safety and that of her children.
Dr. Foster also reported, “It is common for persons like [Mother] to abstain from
substance misuse while [their] behaviors [are] being monitored by the authorities.
These periods of sobriety may lead others to believe that her behavior has
changed only to find that she will relapse once her legal difficulties have
subsided.”
33
He believed that Mother and Father’s relationship was “probably very
unstable.” He believed that, as parents, he would “expect a high risk of neglect”
of the children. In order to effect change, Dr. Foster expected that Mother and
Father would need “many months, if not many years” of counseling. He said that
continued arrests were an indication that the parents were not making progress.
When Father was asked if he had ever been verbally abusive to Mother, or
if she had ever been verbally abusive to him, he responded, “I mean every
couple gets into fights.” See id. § 263.307(b)(7). He denied any physical abuse
between them. He also said that he would never fight with Mother in front of the
children. Mother also testified that although they had fights “like every couple,”
there was no violence between her and Father.
Stephanie Kolb, a DFPS investigator, testified that she witnessed a
physical altercation between Mother and Father at a court hearing. Mother
shoved Father in the courtroom. Ex-Husband also testified to an instance in the
courtroom when Mother hit him after learning that her children were being
removed.
Mother testified that Ex-Husband fractured her arm in a fight that occurred
in front of Abigail. Ex-Husband testified that Mother was angry at having to pick
up Abigail and that she vandalized his car and started swinging at him. Mother
called the police and told them she had broken her arm, but Ex-Husband testified
that Mother never went to the hospital, and never had a cast or any other
evidence of a broken arm. Ex-Husband was charged with a Class C
34
misdemeanor of criminal mischief for vandalizing the hood of Mother’s car by
striking it with his fist. Ex-Husband testified that Mother had thrown dishes at him
“[a] couple of times.”
Father’s testimony regarding his drug history was inconsistent.7 See id.
§ 263.307(b)(8). He testified that he did not use drugs prior to the children’s
removal. He also testified that prior to 2009, he had “no issues” with drugs,
although he did admit to having used drugs by that time. From age sixteen to
twenty-two, Father used marijuana and drank alcohol. He also admitted to telling
First Steps that he used ecstasy at age sixteen. He did not recall telling First
Steps that he had used mushrooms, cocaine, and opiates.
When DFPS first visited Mother and Father in July 2010, it asked the
parents to take drug tests. The parents refused. Father testified that he now
regrets refusing the drug test.
Father testified that he had used cocaine and heroin in the past two years
and had used methamphetamine once. He stated that he used heroin before
Mother was pregnant with Maria and again after Maria had been removed from
their home. Maria was removed on October 12, 2010, and Father tested positive
7
Father testified that he has an anxiety disorder that interferes with his
memory. He said that he was not currently on medication for the disorder
because of his methadone treatment. He later testified that he did not think he
had ever been diagnosed with any kind of disorder. He then testified that he had
been on Klonopin or Clozapin prescribed by his family doctor for anxiety before
he met Mother. Dr. Foster testified that Father tested as having very low anxiety
scores. Dr. Foster said that no anxiety disorder was evident from Father’s test
results.
35
for methamphetamine and cocaine on October 13, 2010. At trial, he said that he
did not know anyone who sells drugs or where to go to buy drugs. He claimed
that Mother had no idea that he was using drugs. At trial, Father agreed that
turning to drugs was an inappropriate way to react to his child’s removal.
Father testified that between July and October 2010 was the first time he
had used drugs in years. Father also tested positive in May 2011, which he
claims was the result of drug usage in March 2011. On March 1, 2011, Round
Rock police officers found Mother and Father asleep in a car in the parking lot of
a hotel. The officers found a coke can turned upside down in the center console
with a “black tar substance” on it, which the officers believed was heroin.
Father said that he did not know how much heroin he was using before he
went to the methadone clinic, or how often he was using. He testified, “I don’t
recall. I mean, it was a problem, I know that.” Father went to First Steps in April
2011 to have his drug and alcohol evaluation. He told First Steps that he did not
use drugs and he had only tested positive for marijuana once two years before.
He testified at trial that what he had told First Steps was untrue. Father first told
Moore that his clean date was March 15 or 16, 2011. He later changed it to
March 21, 2011.
Father testified that he had been using cocaine and heroin together, and
that the services he was receiving at the methadone clinic were sufficiently
treating his addictions, and that he was getting counseling through the clinic.
Father testified that he was not attending AA or NA meetings.
36
The First Steps counselor said she had concerns about Father’s honesty.
She testified that Father was “guarded regarding the history of alcohol and drug
use, [and] he was irritable during the process.” She testified that Father attended
only nineteen of forty-two group sessions and only two individual counseling
sessions. She described Father as initially “very irritable” and said that he had
the mentality that people were picking on him. She said that Father would get
very angry, and that he would curse and walk out of sessions. Father was
eventually discharged as unsuccessfully completing therapy for lack of
attendance.
Mother testified that she started using heroin after her children were
removed. Although a bag of marijuana was found in her house on February 11,
2009, she denied using at the time. She later clarified, “I meant at the time that
that happened, that the incident happened, I was not under the influence.” She
claimed that she used the marijuana alone and not in the house. Mother testified
that she smoked on the patio. The police officer who was called to her house in
February 2009 testified that Father told him that Mother smoked in the restroom.
Mother admitted at trial that she should not have turned to drugs when her
children were removed. Mother told First Steps that she had been taking valium
for two and a half years, starting in the summer of 2008. At trial, she said that
she wrote down that she was using valium because she thought it was the same
thing as hydrocodone.
37
Mother testified that she had been prescribed hydrocodone and was still
taking hydrocodone when she started using heroin. She testified that she was
not addicted to hydrocodone or any other drug until December 2010. She said
that she told Denton Treatment Services that she had been addicted to drugs for
two years because she was told that they would not help her unless she had
been addicted for at least that long.
The First Steps counselor testified that she heard Mother’s testimony that
she had not been addicted to drugs until December 2010, and she testified that
was different from what Mother said in her group sessions at First Steps. The
counselor testified that Mother told her she was using heroin daily with Father,
and that Mother was afraid that she would die if she continued using at the rate
she was currently using. The counselor said that she was concerned with
Mother’s credibility.
At First Steps, Mother told the counselor that she had been taking valium
daily for two and a half years. The counselor testified that such an amount for
that period of time would indicate a “high probability” of addiction to valium but
that methadone would not be used to treat a valium addiction. The counselor
said that she first recommended a supportive outpatient program for Mother,
which is a less intensive program than the intensive outpatient program. But
after Mother admitted to more drug use, First Steps increased the level of
suggested treatment to intensive outpatient.
38
At trial, Mother said, “I honestly believe that I feel that I have successfully
overcome my addiction.” She then explained that she knew she was not done
with treatment, but that she has successfully stopped using drugs. The First
Steps counselor testified that Mother and Father were improving at the time they
were discharged, but that they had a long way to go.
Mother tested positive for ecstasy in August 2010. When Father learned
the results of Mother’s drug test, he laughed and said that someone must have
put something in Mother’s drink while she had been working as a waitress in a
strip club. Moore testified that the levels of creatine in the parents’ drug tests
concerned her that they were possibly trying to hide their drug use.
Dr. Ann Arcuri was the therapist at Denton Treatment Services, the
methadone clinic that Mother and Father were using. Dr. Arcuri testified that at
least a one-year history of opiate dependence is required for admittance to the
methadone treatment program at Denton Treatment Services. Father told her
that he had been addicted to heroin for three years. Mother reported to her that
she had a two-year history of dependence. Mother and Father met with Dr.
Arcuri once a month, which Dr. Arcuri testified was not often enough to make a
change. Dr. Arcuri said that counseling once a month is the minimum
requirement to stay in treatment, but a patient would need to be in therapy at
least once a week for fifty minutes to make a change. She testified that she had
asked Mother and Father to come in more frequently, but they refused. She said
that she expects patients to stay for fifty minutes, but Mother and Father would
39
only stay for ten minutes. Dr. Arcuri said that there has been “a slight
improvement” with Mother. Mother testified that she talks with Dr. Arcuri “a
couple times a week” and that she stays in the session until Dr. Arcuri tells her
that her time is up.
Mother told Dr. Arcuri that she was excited to start methadone treatment
because “her heroin usage was out of control.” Dr. Arcuri has had trouble getting
Mother to attend counseling, however. On June 27, 2011, Mother went to the
clinic and was told that she could not receive methadone until she had attended
a counseling session, because she had not attended any counseling that month.
Mother told the counselor that she did not have time and did not want a
counseling session. When the counselor insisted, Mother said, “Fuck off, bitch.
I’m in a bad mood.”
Mother testified that in addition to the counseling at Denton Treatment
Services, she was in intensive outpatient treatment and seeing a therapist.
Mother testified that she had informed Dr. Arcuri that she had been seeing other
counselors but that Dr. Arcuri must have forgotten that conversation.
Mother testified that she looked for NA and AA meetings while living in
Nacogdoches but could not find any. She did not look for meetings in Austin, but
she has “occasionally” attended some meetings since returning to Denton.
Mother defined “occasionally” as “a couple of times a month. I mean I just—I go
every now and then.” When asked about the number of times she attended a
meeting in the three months preceding trial, Mother could not give a number.
40
She did not have a sponsor by the time of trial and had not started working the
steps.
Mother was asked about the drug test she failed when her children were
removed. She said the result was the consequence of making “a bad decision to
work somewhere [she] shouldn’t have.” She was further questioned about her
marijuana use and her addiction to heroin and hydrocodone, and she responded,
“I know I’ve done stuff that’s wrong.”
Mother testified that she did not believe she failed to comply with DFPS in
their investigation or that she failed to comply with her court-ordered service plan.
See id. § 263.307(b)(10). The DFPS investigator, Stephanie Kolb, testified that
Father was “[v]ery, very hostile” to her during her investigation. She said that
Father would yell at times and was “over-the-top with emotions.”
Moore testified that Mother would not return her calls and that Moore set
up three different appointments to meet with Father but he did not show to any of
them. Moore sent Father an email asking for information, and he responded
“that he [was] not going to do [her] job for [her]. Since [she] was making his life
hard, he was going to make [her] life hard.” Moore testified that less than a
month and a half before trial, Father told Moore that he was moving to Austin,
and Moore asked him where he was living so she could transfer his services.
Father told her that he did not know his address. When she asked where he
would be working, he told her that she did not need that information. Moore
testified that twice she had to go to court to get information from him. When
41
Moore asked Mother and Father about whether they had seen Maria on an
unapproved trip to Nacogdoches, they “both immediately said no,” which Moore
knew was not true based on pictures she had of Father walking with
Grandmother, Grandfather, and Maria.
When DFPS first visited Mother and Father in July 2010, it asked the
parents to take drug tests. The parents refused. Kolb decided not to keep Maria
with Father because “[t]here was a very big concern of his protectiveness and
due to the behaviors that he exhibited. He made it very clear he did not believe
that our drug test was true and made a comment that even if it was, what’s—
what’s the big deal.” Kolb discussed with Mother the option of voluntarily placing
the children somewhere, but Mother “did not see the need for it so [she] was not
going to do that.”
Moore testified that Mother and Father failed to show up for a number of
drug tests. Father testified that he had been ordered to participate in a drug and
alcohol assessment in October 2010 but that he did not complete the
assessment until April 2011. Father testified that he moved to Austin in late
December 2010 but did not get the 2054 forms to start his services there until
April 2011. He claimed that Moore was supposed to call him with information,
but that he never heard from her. The First Steps counselor testified that Father
told First Steps that he was transferring his services to Austin. The counselor
said that Father’s files would have been transferred to Austin on request but that
he never told her where he would be receiving treatment in Austin.
42
Father claimed that he was unable to keep a fulltime job and attend all the
classes he was required to attend at the same time. So, in April 2011, he quit his
job and returned to the Denton area to complete his services. Father testified
that he took parenting classes that he paid for on his own because DFPS did not
pay for them.
Mother did not complete her drug and alcohol evaluation until January
2011. Mother did not schedule her psychological evaluation with Dr. Foster until
February 2011. She testified that she did not receive recommendations based
on her evaluations to complete more services until April 27, 2011, which was
about six and a half months after her case had started.
Moore testified that Father was scheduled for an appointment for his
psychological exam in March 2011, but that Father did not show up. Father
testified that he did not make an appointment to see Dr. Foster until June 2011.
He claimed that at the appointment, he filled out some paperwork but that Dr.
Foster did not talk to him at all, and he never heard from Dr. Foster after that. Dr.
Foster testified that he and Father spoke for about forty-five minutes.
Mother testified that she informed her caseworker when she moved and
went to the DFPS office in Nacogdoches “a couple of times trying to talk to
somebody.” Jocelyn Watkins, a DFPS supervisor, testified that services were set
up in Nacogdoches and that Mother had a caseworker assigned in
Nacogdoches. Julie Westlake, a supervisor for DFPS investigators, testified that
Mother and Father moved so often towards the end of the case that the
43
Department lost track of them. Kolb testified that they were unable to contact
Mother for about three weeks. Westlake said that DFPS wanted another drug
test from Mother, but it was never able to get it. Kolb testified that on August 27,
2011, she went to Mother and Father’s house to look for Mother. She saw cars
in the driveway, but no one would answer the door.
Mother testified that while she was in Nacogdoches, she made efforts to
complete her services. She said that every time she would drive to Denton for
visitation with her daughters, she would try to schedule appointments such as her
psychological evaluation and her drug and alcohol evaluation. Kolb testified that
she could not verify that Mother was living in Nacogdoches and that she had no
“communication” with Mother or Father about setting up services there.
Mother testified that in January 2011, she was still in denial about needing
help for her drug addiction, and that is why she lied on her First Steps intake.
Mother only attended twenty-four of the forty-two group sessions offered through
First Steps. Mother testified that she missed some sessions because they
interfered with her GED classes. The First Steps counselor testified that Mother
did make progress “at one point.” The counselor testified that Mother initially fell
asleep in class and refused to attend sessions without Father. First Steps
recommended that Mother attend the women’s group sessions. The counselor
testified that initially Mother would only attend group sessions with Father, and
Mother said it was because of transportation problems. Mother and Father were
both discharged from First Steps for lack of attendance.
44
Father admitted that his frequent moves “probably played a part” in
DFPS’s difficulty in setting up his services. Mother testified that when she
informed DFPS that she and Father were moving back to Denton and that they
wanted to complete parenting classes, DFPS told them that because they were
moving to terminate the parents’ rights, the Department would not pay for
parenting classes or Father’s psychological evaluation. Mother testified that she
and Father enrolled in the Love and Logic Parenting Class at First Steps on their
own initiative. Mother also enrolled in a GED program at her own cost.
Moore testified that the parents attended appointments “sporadically” but
that their “behaviors and attitudes had not changed in regards to the reasons the
children came into care.” See id. § 263.307(b)(11). Father was asked, “Do you
remember telling the Court—being hostile and telling the Court numerous times
that [DFPS] had no reason to be involved in your life?” He responded, “I’m sure I
said that.”
Father testified that he has been drug-free for approximately six months,
since he started attending Denton Treatment Services. He said, “I feel I’m a
totally different person as to how I was when I was rebelling after high school. I
mean, totally different. I don’t do anything wrong. I don’t even have any friends. I
mean, me and [Mother] are the only people we talk to.” He says that he no
longer socializes with his previous friends because they were a “[b]ad crowd.”
Mother testified that she had not paid any child support by the time of trial.
See id. § 263.307(b)(12). She testified that she smoked while pregnant with
45
Maria, and, by the time of trial, had not yet been able to quit smoking completely.
Mother testified that she believed she was on time to all her visitation, “give or
take maybe five minutes.” Moore testified that at a visitation in April, Mother
“appeared to be very sleepy, very tired, her speech was slurred and slow. And it
was concerning that she may be under the influence of something.”
Father testified that he worked as a welder and made $23 an hour, so he
could use his wages to pay for the children’s needs. See id. § 263.307(b)(12)(A).
Moore testified that she saw improvement in the types of foods that Mother and
Father brought to visits.
Father testified that he loved Maria “more than words can explain” and that
she loves him too. See id. § 263.307(b)(12)(B). He believed he and Mother had
the ability to properly care for Maria. He testified that when DFPS removed the
children from his care, the house was “spotless” and the children were healthy
and clean. Father testified that he did not remember any occasion where he was
admonished for his behavior at visits with his child. He said he had always been
on his best behavior.
Mother testified that she learned the love and logic style of parenting, a
“style of parenting where you allow your children to make more choices and you
give them a lot of choices to make and let them make good decisions and a lot of
positive reinforcement.”
46
Moore testified that of the visits she observed, there were “only one or two
visits [that] [she] would classify it as an appropriate visit.” See id.
§ 263.307(b)(12)(C). She testified,
There was a visit where [Father] brought Pop-It fireworks to the visit
and attempted to pop them indoors. There was a visit when [Father]
was giving [Maria] Dr. Pepper in her sippy cup, was asked not to do
it. He informed us not to tell him how to parent.
....
A following visit, he attempted to do that again. I informed him
his visit would end if he continued to give her Dr. Pepper. He then
tried to give her Dr. Pepper and then he refused to leave the visit
room, where I had to tell him I was going to call the police if he did
not leave the building.
Moore said that when Father got irate, Abigail hid under a table. When
Moore told Father that she was going to end his visit, Father told her that “his
mother had custody of the child, and she was the only one that could tell him
what to do.”
Mother and Father testified that Mother’s family was not very supportive of
them. See id. § 263.307(b)(13). Mother called her mother a “pill head.” Moore
testified that Mother’s mother was not a suitable placement for the children
because of her “mental instability.” Ann Maroney testified that Mother’s mother
was “very unstable at this point, and she [was] involved with some prescription
drugs. She’s also married to a meth addict.”
Ex-Husband testified that he believed that Grandmother and Grandfather
“enable a lot of things, maybe not directly or intentionally, but [he] think[s] they
47
have enabled unintentionally.” Grandmother and Grandfather owned the house
that Father rented and the car on which Father made payments. Father paid
Grandmother $2,000 a month, which covered his rent and car payments. Father
testified that Grandmother bonded him out of jail after his arrest in Round Rock
for possession of controlled substances and for the aggravated robbery. Mother
testified that Grandmother provided a lot of support, including toys and clothes
for the girls. Grandmother testified that in early 2011, she had not heard from
Mother or Father for “awhile” and searched online to find out if they had been
arrested. Grandmother did not have a discussion with Mother or Father about
the arrest after she found out about it.
Police officer John Martinez testified that he was called to investigate the
robbery at the Buckle store. A witness identified the license plate of the car used
in the robbery, and Officer Martinez discovered it was Grandmother’s car. He
called Grandmother and asked for Father’s address, but Grandmother said she
did not know it.
Grandmother asked Father about his arrest on June 16th, 2011, but at
trial, she said that Father “did not understand why he was arrested.”
Grandmother said that the information in the police report regarding Father’s
arrest was concerning, but she did not have concerns about Father’s parenting
abilities based on his criminal history over the months preceding trial. When
asked if she thought Father had engaged in dangerous conduct through drug use
or criminal conduct, she said, “I believe it’s possible.” She did not believe that
48
Father had put Maria in danger by doing drugs during the course of the case.
She testified that although she had never seen signs of drug use from Father,
she would make him take drug tests to know if he was using drugs in the future.
She said that she knew Father would comply with requests for drug tests
because she had made him take them before.
Patience Galindo, the kinship development worker for DFPS, testified that
Grandmother told her that she did not believe that her son was using drugs and
that she had never seen any sign of drug use, despite the parents’ previous
positive drug tests. She thought that Grandmother appeared unwilling to accept
what was going on with her son. She testified that Grandmother said “many
times that she didn’t understand why she had to follow the rules that [DFPS] set
forth because she had custody of [Maria]. And it had to be explained to her that
she did not have custody of [Maria], she had placement.” Galindo testified that a
person cannot be protective of a child if they do not believe what is happening to
the child.
Grandmother paid for both parents’ methadone treatment. She said that
when Mother asked her to pay for her treatment, Grandmother did not ask what
kind of drugs Mother was using. When asked what drugs she thought Mother
and Father might have been using, she said, “I had no idea and I did not care. I
just knew they needed help.” She testified that she did not see methadone as a
serious drug. She said, “I would see it as treating, like a headache, treating.”
Grandmother testified that she had never received a copy of the service plan that
49
Mother and Father were required to complete, that she did not know whether
they were working their services or not, and that it was not a concern of hers to
check that they were making progress.
Father testified that Grandmother and Grandfather took Maria to
Nacogdoches to visit Mother’s grandmother. Father said that Grandfather
dropped Grandmother and Maria off at Mother’s grandmother’s apartment and
then met up with Father and Mother at the storage unit. Mother and Father then
returned Grandfather back to the apartment where Grandmother and Maria were.
However, Grandmother testified that she, Grandfather, and Maria met Mother’s
mother at the storage unit. After unlocking the storage unit for Grandfather,
Mother’s mother drove Grandmother and Maria to Mother’s grandmother’s
apartment.
When Mother and Father arrived at Mother’s grandmother’s apartment,
they stood in the hallway while Grandmother gathered her things inside the
apartment, and walked past Mother and Father with Maria on her way to the
elevator. Mother found Maria’s sippy cup in the apartment and brought it down to
the parking lot to give to Grandmother.
Mother testified that DFPS never said they could not go to Nacogdoches,
only that they could not all go together. Grandmother testified to the same thing.
Grandmother testified that she was never told that she needed to notify DFPS of
any unplanned interactions between the parents and Maria. Galindo testified that
Grandmother was told in both permanency conferences that she needed to
50
report unplanned interactions. When Grandmother returned from Nacogdoches
and was asked if Mother and Father had visited Maria, she told the Department
no. She did not tell DFPS that she had passed them in the hallway accidentally.
Grandmother said that she was angry at Mother and Father for going into the
apartment building and that she talked to them about it later, but she did not
remember what their responses were.
Moore testified that Father told her that DFPS had previously allowed visits
outside of standard visitation, which concerned Moore. Moore also said that she
told Grandmother that the parents could not go to Nacogdoches because they
had not been working their services. She testified that Grandmother was not
able to control Father during visitation.
Grandmother testified that Maria was always “elated” to see her parents at
visitation. See Holley, 544 S.W.2d at 371–72. The guardian ad litem testified
that Abigail talks less about Mother now than she used to. Ex-Husband testified
that Mother missed visitation with Abigail for the first half of the case, which made
Abigail upset. See id. He said that since Maria had been placed with the
Maroneys, the girls get to see each other much more often. He testified that if
Maria stayed with the Maroneys, he would be able to maintain a relationship
between the two children.
Ex-Husband testified that Abigail told him about fights she witnessed
between Mother and Father. See id. He felt that Mother did not take appropriate
51
steps to prevent Abigail from exposure to fights. Ex-Husband was concerned
about Mother and Father exposing Abigail to verbal abuse and physical violence.
Maria was placed with the Maroney family after being removed from
Grandmother. Ann Maroney testified that she was thirty-four years old and was a
stay-at-home mom to Maria and her two other children, who are thirteen and
eleven years old. She said that her children love Maria and that Maria calls them
Sissy and Bubba. Ann has been married to Bob for sixteen years, and they have
a large, five-bedroom, three-and-a-half-bath house.
Ann testified that there was tension between her and Mother because of a
tense relationship that Ann had with Mother’s mother. Ann said that while Mother
lived with them, Mother would stay out late with Abigail, while pregnant with
Maria, and return home between 1:00 and 3:00 in the morning. Mother would get
up
anywhere between 12:00 and 1:00 o’clock in the afternoon. She
would grab [Abigail] a package of Teddy Grahams and herself a
Coke and go outside and smoke a cigarette and talk on the phone
for probably a good hour. And then she would come inside—come
inside and she would get herself ready, and then she would leave.
Ann said that she met Father once and “wasn’t very impressed.” Ann said
that she never spoke to Mother about Mother’s behavior while Mother was living
at her house because “you have to be careful with what you say to her. She
gets—she gets mad very easily.” Ann described a time when Abigail would not
put her shoes on and Mother screamed at her so loudly it frightened Ann’s
children.
52
Ann said that when Maria was born, she sent Mother a congratulatory text
message. Mother responded that “if [Ann] had a problem with her mom, then
[Ann] had a problem with her and to basically go to hell and never contact her
again.” Ann testified that she blocked Mother’s number on her cell phone in
January 2010 because she was “getting harassing text messages at 2:00 or 3:00
o'clock in the morning, one after another, after another, after another.”
Mother testified that she was “[m]ost definitely” concerned about Maria
living with the Maroneys. See id. She said that she was concerned that the
Maroneys would not treat Maria as well as their other children. Mother said that
the last time she talked to the Maroneys, they told her they were blocking her
number.
Father testified that he believed he was a better parent than the Maroneys.
Father said that the Maroneys had never called Mother or tried to see Maria until
she was placed in their home by DFPS. Father testified that when Mother was
living with the Maroneys, they refused to feed her. He said that Mother left the
Maroneys’ house and moved in with him and his parents “for that specific
reason.” Father said that Mother only lived with the Maroneys for two weeks.
Mother testified that when she lived with the Maroneys, they “made [her]
feel really unwelcome with [her] daughter.” She said,
I mean they wouldn’t let her—she would like to carry around her
sippy cup. They had hardwood floors. They wouldn’t let her carry it
around. They didn’t want her to be able to have snacks. They didn’t
want her to bring any of her toys downstairs. I constantly just—I
53
mean I felt like I just needed to stay upstairs and hide from them
because of all the rules that they had.
Ex-Husband had observed the Maroneys and Maria together, and he
testified that the Maroneys “seem[ed] to be great parents.” He said that their
house was well-kept and that Maria was always properly groomed. Ex-Husband
testified that Mother would sometimes tell Abigail that it was DFPS’s fault that
Mother missed visitation.
Moore testified that she has observed the Maroneys with Maria. She said
that Maria gets along well with the Maroneys’ other children and that Maria’s
grooming was always fine. Moore believes that Maria’s best opportunity for
success was with the Maroneys because “[t]he [Maroney] household is willing to
provide permanency and stability for the child. The [Maroney] household is also
protective.”
Father testified that he believed that Mother was a very good parent and
that she “care[d] about her kids a whole great deal.” Maria’s nursery nurse when
she was born testified that she was concerned about Mother’s bonding with
Maria because Mother would not request to see Maria. The nurse testified that
the only time Maria was taken out of the nursery was when Mother’s mother was
visiting. The nurse said that Mother would not maintain eye contact with her or
speak to her.
Mother testified that Father was a good father. She said,
He was always very attentive. I mean it’s just—it was so obvious that
he cares about her more than anything in the entire world. I knew
54
before I even had [Maria that] he was going to be a good father, the
way that he cared for [Abigail], and [s]he wasn’t even [his] biological
daughter.
Mother testified that Ex-Husband was a good father who had never done
anything to hurt a child. She had no fear that Ex-Husband would use drugs in
the future, despite having used drugs in the past. She believed that Ex-Husband
made appropriate decisions regarding the people he allowed to be around his
daughter. She agreed that, at the time of trial, he was in a better position to
decide how often Abigail should be allowed to see Mother.
Ex-Husband testified that he had concerns about Father being around
Abigail because of a “drug environment.” He had asked Mother if Father was still
using drugs and Mother had “swor[n] to [him] and [had] promised [him] that
[Father] was different, he didn’t mess with that anymore.” Ex-Husband said that
Abigail attends preschool five days a week and that she is doing “great” in
school. He thought that when he first got possession of Abigail during this case,
she might have been behind in some of her development, but that he believed
she had surpassed where she should be intellectually. He said that Abigail loves
arts and crafts and to go fishing with her half-brother. Abigail and her half-
brother “love each other to death.”
Ann Maroney testified that she and her husband would like to adopt Maria.
Ann testified that she would like to put Maria in counseling at some point to help
deal with the loss of her parents. Ex-Husband would like to be solely responsible
for Abigail’s safety and welfare.
55
Father testified that he believed his wages were enough to support a
family. See id. He said that Mother would care for the children while he was at
work. Mother explained her plan for her children,
I would love to be able just to be there with them. I wasn’t
there when [Maria] took her first steps. I wasn’t there when [Abigail]
got her ears pierced. I missed out on my children’s like moments in
their lives.
I just—I want to be able to be a mother to them. I mean I
would like to put them—you know, if I were to get them back, I would
like to keep [Abigail] in whatever preschool she’s in, to minimize
change. I would keep [Maria] in whatever daycare program she’s in
to, you know, minimize change for her for social, you know, so that
she can socialize with other kids and stuff. I would love to be able to
take the kids to church with me.
I mean since my—I’ve refrained from my addiction, I’ve started
going to church again, [Father] and I have, [to the] Village Church in
Denton. I would like to be able to go on family vacations again. I
would like to be able to—I mean when I get on my feet more
financially, to start a savings account for my children so that they can
choose to go to college if they like or—I just know more now than I
did before.
And I just—I don’t think that the rest of my life should be
defined by the mistake that I made or the rest of my children’s lives
by not having their parents.
Father and Mother moved frequently during the time their DFPS case was
open. Moore testified that their frequent moves made their housing situation
unstable. They lived in a house rented from Grandmother and Grandfather from
early 2010 to August 2010. At that time, Mother moved to Nacogdoches, and
Father moved shortly thereafter. Father testified that he did not have a job when
he moved to Nacogdoches. He then got a job near Austin, and moved down in
November. Mother followed him in December. They moved back to Denton in
March 2011.
56
Father testified that he planned on marrying Mother but was waiting for a
time when he would be “in a place in [his] life where [he could] give her a
wedding.” Moore testified that Mother seemed “very dependent on [Father], or
any male in her life, and it would be concerning that she would proceed to get
into another unhealthy relationship with another inappropriate person.”
Analysis
Moore testified that neither parent requested an extension so they could
complete their services. Grandmother testified that at the time of trial, she did
not think that Mother and Father were ready to have the children returned to
them. She did think that they had made significant improvements since the
beginning of the case. Ex-Husband testified that he was “very concerned and
disturbed” by the possibility of Abigail going back to Mother if her rights were not
terminated. He was also concerned about Abigail’s ongoing relationship with
Father. He stated that he was concerned for Abigail’s safety as long as Mother
and Father were together. He believed it was in Abigail’s best interest to
terminate Mother’s parental rights. He testified that it would “possibly” negatively
affect Abigail if Mother’s rights were terminated but that it would also possibly
negatively affect her if Mother’s rights were not terminated.
The parents’ testified that they made attempts to complete their services in
the different cities where they had lived. However, Department employees
testified that the parents appeared to avoid their services. After the children were
removed, the parents continued to behave in a manner that did not indicate that
57
they had good judgment or that they took the children’s removal seriously. See
In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011, no pet.) (noting
that the parents' “poor judgment [and] the constancy of their drug use” weighed in
favor of terminating their parental rights).
While the evidence was uncontroverted that both parents had been drug
free for about six months by the time of trial, neither parent was attending NA or
AA meetings regularly, and they had been discharged as unsuccessfully
completing First Steps. And although both parents were on methadone for
opiate addiction, they both testified that they did not have the requisite addictions
required to be treated at the methadone clinic. If they did not have the addiction
they told the clinic they had, then they were dishonest with the clinic. If they did
have a long opiate addiction, then they were dishonest at trial. The
inconsistencies in their accounts concerning their drug use show a pattern of
misrepresentation or dishonesty. Dr. Foster’s reports for both parents warned of
the likelihood that they would relapse. Further, “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.” In re J.O.A., 283 S.W.3d
336, 346 (Tex. 2009).
Both parents had been incarcerated. See In re J.B.W., 99 S.W.3d 218,
229 (Tex. App.—Fort Worth 2003, pet. denied) (holding that incarceration is one
factor courts can consider when determining the best interest of a child in a
termination case). Father had an extensive criminal history dating from 2005.
58
See R.R., 294 S.W.3d at 235 (considering evidence of a father's past convictions
supportive of the trial court's best interest finding); In re S.M.L., 171 S.W.3d 472,
480 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating that the father’s
incarceration and pattern of criminal and violent conduct made it likely that he
would face incarceration again in the future). Even after they had stopped using
drugs, the parents continued to engage in criminal activity. They both had
pending charges at the time of trial.
Their service plan required both parents to maintain employment and
suitable housing for their children. Neither parent contests the sufficiency of the
evidence to support the trial court’s finding that they failed to comply with the
provisions of the court order that specifically established the actions necessary
for the return of their children. The fact that neither parent had stable
employment or housing, along with the evidence that made obtaining those
necessities doubtful based on past conduct, could be compelling evidence that
termination of the parents’ rights would be in the best interest of the children.
Moore testified that DFPS believed it was in Abigail’s best interest for Ex-
Husband to have sole managing conservatorship of Abigail. She based this on
the Department’s observations of Ex-Husband caring for Abigail throughout the
case. Moore said, “[Abigail] is happy. She’s healthy. She’s well-cared for. He’s
completely appropriate. There has never been any concerns with him not doing
everything in his power to protect her and notifying the Department of anything
that he needs.” Moore believed Mother’s rights to Abigail should be terminated
59
based on “[o]ngoing drug use, ongoing behaviors, lack of completion of services
and inappropriate decision-making on her part.” Mother testified that she
suffered from depression, yet she denied being on medication. DFPS closed a
previous case on Mother because she sought treatment for anxiety and bipolar
disorder from MHMR. See In re K.W., No. 02-08-00162-CV, 2009 WL 417913, at
*6 (Tex. App.—Fort Worth Feb. 19, 2009, no pet.) (mem. op.) (“Despite
Appellant's bipolar diagnosis, she did not take medication and had not sought
treatment from a mental health expert. This evidence also tended to show a
potential emotional and physical danger to the children.”); In re E.A.W.S., No. 02-
06-00031-CV, 2006 WL 3525367, at *11–12 (Tex. App.—Fort Worth Dec. 7,
2006, pet. denied) (mem. op.) (holding that mother's “instances of mental
instability and agitation, including threatening behavior and suicidal ideation”
supported termination); In re K.A.S., 131 S.W.3d 215, 226 (Tex. App.—Fort
Worth 2004, pet. denied) (discussing the emotional and physical danger of the
mother's noncompliance in taking medications for her bipolar disorder).
Moore also testified, “[Maria] is very young. She’s not even two years old
yet. She needs stability and, again, she needs permanency. And the parents
have not adequately shown that they can provide a stable, safe, protective, drug-
free environment for her.” Further, Moore said, “[Maria] deserves to be adopted.
She deserves to be raised by a stable, loving environment that will always keep
her safe and be looking out for her best interest opposed to other people’s best
60
interest.” Moore was concerned that there would be future issues with the
parents if their rights were not terminated.
Based on our review of the entire record, we hold that the jury could have
reasonably formed a firm conviction or belief that termination of the parent-child
relationship would be in the best interest of both children. See Tex. Fam. Code
Ann. § 161.001; C.H., 89 S.W.3d at 28. We overrule Father’s first issue and
Mother’s first and second issues.
Conclusion
Having overruled Grandmother’s, Father’s, and Mother’s issues, we affirm
the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DELIVERED: November 8, 2012
61