in the Interest of A.B. and H.B., Children ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00209-CV
IN THE INTEREST OF A.B. AND
H.B., CHILDREN
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In five points, Appellant D.B. (Father) appeals the trial court’s order
terminating his parental rights to his children, A.B. and H.B. Because we hold that
the evidence supporting the endangerment findings remains insufficient, we reverse
the trial court’s judgment terminating Father’s parental rights and remand this case
to the trial court for another new trial.
1
See Tex. R. App. P. 47.4.
I. Procedural and Factual Background
A. Procedural Background
This is the second time that this matter has been before our court.2
As we detailed in our first opinion, A.B. and H.B. were placed with family
members in September 2007 after then fifteen-month-old H.B., weighing only fifteen
pounds, was admitted to the hospital; she had suffered a seizure. The Texas
Department of Family and Protective Services (TDFPS) concluded that she had
been physically neglected. The children remained in that voluntary family placement
about nine months before TDFPS returned them to Father’s care.3 About a month
after reunification, TDFPS removed the children from Father after a doctor opined
that A.B. had injuries that were not accidental, and TDFPS placed the children with
an unrelated foster family.4 TDFPS filed its petition for termination the next day.
About seven months later, the children were placed with a second foster family,
G.H. and J.H.5
In June 2009, after a bench trial, Father’s parental rights were terminated for
the first time. The trial court found by clear and convincing evidence that Father had
knowingly placed or knowingly allowed the children to remain in conditions or
2
See In re A.B., No. 2-09-00215-CV, 2010 WL 2977709 (Tex. App.—Fort
Worth July 29, 2010, no pet.) (mem. op.).
3
See id. at *4, 7.
4
See id. at *13.
5
See id. at *28.
2
surroundings that endangered their physical or emotional well-being, that he had
engaged in conduct or knowingly placed the children with persons who engaged in
conduct that endangered the children’s physical or emotional well-being, and that
termination of the parent-child relationship with Father was in the children’s best
interest.6 S.B.’s (Mother’s) rights were also terminated, but she did not appeal that
decision.
Father appealed from that judgment and challenged the legal and factual
sufficiency of both endangerment findings and of the best interest finding.7 In July
2010, this court reversed the judgment and remanded the case to the trial court.8 In
doing so, we overruled Father’s legal sufficiency challenges, sustained his challenge
to the factual sufficiency of the evidence supporting the endangerment findings, and
did not reach his challenge to the factual sufficiency of the evidence supporting the
best interest finding.9 No one petitioned for review of our decision.
Father’s parental rights were terminated for a second time in June 2011 when
a jury made the same endangerment and best interest findings that the trial court
had made in the first trial. This appeal followed.
6
See id. at *32.
7
See id. at *1.
8
See id. at *44.
9
See id. at *36, 40–42.
3
B. Factual Background
Because our previous opinion set forth in great detail the evidence from the
first trial,10 this section of our opinion will set forth additional evidence admitted in the
second trial—relevant evidence from new exhibits, relevant testimony from new
witnesses, and new testimony from repeat witnesses.
1. New Exhibits
a. Family Assessment Summary
TDFPS offered and the trial court admitted into evidence a family assessment
summary completed by the Missouri Department of Social Services (MDSS). This
assessment summary pertains to a December 2005 investigation that MDSS had
conducted into the living conditions that Mother and Father had provided for A.B.
while living in Missouri. This summary indicates that someone had reported that
A.B.’s living conditions in the family’s home were unsanitary, hazardous, and
immediately threatening to A.B. due to a lack of heat and to the presence of dog
feces, dirty clothes, and trash everywhere.
The assessment summary confirms this report in part and refutes it in part.
Some boxes checked on the summary indicate that the living conditions were
hazardous and immediately threatening, that they needed improvement, and that
someone reported poor hygiene and dirty clothes. However, other checked boxes
indicate that medical and dental needs were being met, that the living conditions
10
See id. at *1–32.
4
were clean, orderly, and sanitary, and that there were no observed infestations. The
assessment summary further provides that the family was staying with friends until
the heat in their own home was restored.
An MDSS representative told Father that he and Mother had made the
appropriate provisions to provide for A.B. by staying in trailers that met minimum
standards and that they were free to move to Texas. The assessment summary
states that services were needed but that the family declined them and moved out of
the state. The summary also provides that MDSS had conducted a prior
assessment for abrasions and for unsanitary living conditions in June 2005 and had
concluded that services were needed.
b. H.B.’s Medical Records from the Bedford Fire Department
TDFPS offered and the trial court admitted into evidence medical records
showing that H.B. had a possible seizure ten minutes prior to someone calling 9-1-1
on September 29, 2007. The sequence chart indicates that H.B. was found awake
and alert in Mother’s arms, that H.B.’s pupils were equal and reactive, and that
wheezes were detected in her upper lobes. The narrative summarizes Mother’s
statements to EMS, including that A.B. had hit H.B. in the head with a toy four days
prior and that H.B.’s gasps for air had prompted Mother to call 9-1-1. The report
outlines the responder’s medical observations, including an abrasion on H.B.’s
forehead, and notes that the hospital staff was told to notify TDFPS for a possible
investigation.
5
c. Project RAPP Disposition Form
Father offered and the trial court admitted into evidence a Project RAPP
Disposition Form, indicating that a psychiatrist, Dr. Robert Mims, evaluated Father in
August 2009 at the Project RAPP offices. We take judicial notice of the fact that
Project RAPP is a Tarrant County Mental Health Mental Retardation (MHMR)
program that seeks to reduce recidivism through psychiatric and psychosocial
rehabilitation.11 The form further indicates that Dr. Mims concluded that Father did
not have signs or symptoms of mental illness and did not require services from
Project RAPP.
d. Order Terminating Father’s Deferred Adjudication
Father offered and the trial court admitted into evidence an October 2009 order
terminating his deferred adjudication community supervision for injury to a child
(A.B.). In this order, the trial court presiding over the criminal case notes that Father
had satisfactorily completed nine months of the two-year deferred adjudication
community supervision period and had satisfactorily fulfilled his terms and conditions
of community supervision. The order discharges Father from further community
supervision, allows Father to withdraw his plea, and dismisses the criminal case.
The order further releases Father “from all penalties and disabilities resulting from
the offense or crime of which he has been convicted or [to] which he has pleaded
guilty, as provided by law.”
11
See Tex. R. Evid. 201(b).
6
e. Order of Deferred Adjudication for Sammie Jo Rains
TDFPS offered and the trial court admitted into evidence the March 2010
order of deferred adjudication for Rains’s conviction of bodily injury to an elderly
person. Father testified that at the time of trial, he and Rains were living together,
and she was expecting a child that might be his.
f. Images
A.B. and H.B.’s foster parents, intervenors G.H. and J.H., offered and the trial
court admitted into evidence two exhibits relating to Father’s involvement with adult
websites. The first exhibit is a 2010 image of Father’s Myspace webpage that
encourages viewers to create a member profile on an adult website at a link
provided. The other exhibit is an image of Father’s “adultspace.com” profile page,
which contains nude photographs. The image indicates that Father has not logged
in since June 2008.
Additionally, the trial court admitted into evidence several photographs that
G.H. and J.H. had taken, including photographs of the children’s rooms, of the
children dressed up in costumes, and of the children lying or walking in fields of
bluebonnets.
g. Lease Violation and Pest Control Records
The children’s attorney ad litem offered and the trial court admitted into
evidence notices of Father’s lease violations as well as pest control records from
Father’s apartment. The notices, dated September 2009 and September 2010,
report violations for unhealthy and unsanitary living conditions and poor
7
housekeeping. The first comprehensible pest control record, dated September 28,
2010, indicates that Father’s apartment was infested with roaches and that a
cleanout would be scheduled for the following week. The next record, dated
October 5, 2010, indicates that Father did not comply with instructions for cleanout
treatment and that the apartment was thoroughly infested with roaches. The next
record, dated October 19, 2010, includes an entry that the roaches were “Bad!!” in
Father’s apartment. The final record, dated November 16, 2010, indicates that
Father’s apartment had a heavy roach infestation. All four records indicate that at
least one other apartment in the complex was being treated on each of those days.
h. 2011 Psychological Evaluation
TDFPS offered and the trial court admitted into evidence Dr. Parnell Ryan’s
January 2011 psychological evaluation of Father. According to the report, Dr.
Ryan’s diagnostic impressions were that Father has bipolar disorder not otherwise
specified (NOS) in partial sustained remission, attention-deficit/hyperactivity disorder
NOS, adjustment disorder with depressive mood, and chronic motor tic disorder and
was abused as a child. The report indicates that Father told Dr. Ryan that he did not
take prescription medications, and Father denied that he ever used illegal drugs or
alcohol. According to the report, Father had been in foster homes as a child, but at
the time of the evaluation, he described his relationship with his mother as “[o]kay”
and with his siblings as “good.” Father’s greatest fear at the time was losing his
children to TDFPS, and he regretted cursing at and getting angry with TDFPS
personnel.
8
Dr. Ryan states in his report that Father’s profile “suggests someone who has
difficulty understanding how his problematic behaviors impact others” but that Father
denied needing to change anything about himself. Dr. Ryan recommended that
Father participate in TDFPS services, attend counseling, and obtain medical
evaluations for possible medication management of his attention difficulties.
2. New Witnesses
a. Jennifer Porter
Porter testified that she was a TDFPS investigator for A.B. and H.B.’s case
and that she was assigned on October 1, 2007, when H.B. was still in the hospital.
She testified that H.B. was discharged from the hospital around October 8, 2007,
and that Father was “up there a lot.” She testified that Father was cooperative with
her.
Porter testified that she attempted the first home visit on October 9, 2007, but
that Father was not home. She added that she heard several dogs barking inside,
that there was a cat sitting in the window, and that there was a strong odor of animal
feces coming from inside the apartment. When Porter spoke to Father the next day,
he told her that he had contacted the city pound because he did not have the means
or ability without a car to take away the four dogs and four cats that Mother had
brought to the apartment. Porter testified that when she visited Father’s apartment
on October 10, 2007, there was a strong odor of animal feces and animal urine,
stains and animal excrement were on the floor, the walls were ripped up, and bugs
were visible in the home, including in the refrigerator and the freezer. She testified
9
that she made the finding of “reason to believe” for physical neglect, and she
testified that the condition of Father’s apartment could be a dangerous environment
for young children who crawl on the floor and put things in their mouths. Porter
testified that she did not know the condition of the apartment during the time that
Father may have been caring for the children and that she did not have pictures of
the apartment with her.
Porter also testified that Father told her that after he and Mother separated, he
would watch the children at his home from 3:00 p.m. until midnight while Mother
worked. Porter further testified that developmental delays could impact a child’s
well-being for the rest of her life without proper treatment.
b. Lamorra Cornelius
Cornelius, a TDFPS investigator for the emergency response unit, testified
that when she was a TDFPS caseworker, her job was to work with parents to help
them get their children back. She testified that when she first met with Father in
October 2007, the children had been placed with family members. She testified
that when she walked into his apartment that month, she felt fleas biting her legs
and noticed a strong odor, stains on the carpet, roaches in the kitchen, and black
water and dirty dishes in the dishwasher. However, Cornelius did not take any
pictures of these conditions.
Cornelius testified that each time Father would come to visits at the TDFPS
office, he would yell and scream at her, make demands, and ask when he was
going to get his children back. She said that this behavior occurred in the children’s
10
presence and that this concerned her because it was not a wise use of his time with
his children. Cornelius testified that although Father was initially noncompliant, he
worked on all of his services from November 2007 to February 2008 and that by
March 2008, TDFPS made a decision to allow Father to have visits in his home.
Cornelius testified that when she visited Father’s apartment on April 2, 2008, it
was clean. She said that she did not notice any odors or stains but that she told
Father that he needed to keep more food in the house. Cornelius also testified that
after a four-hour visit in April, Father returned the children to TDFPS hungry and
dirty from being at the park. She testified that he also returned the children hungry
after the next four-hour visit and that he got angry with her when she discussed his
failure to feed the children. She explained that Father had difficulty obtaining food
because the family members with whom the children had been placed had the food
stamps and that Father had trouble getting the food stamps transferred back to him.
Cornelius testified that Father had food for the children by the next visit because a
friend gave him food.
Cornelius testified that when Father returned the children from the next two
visits, one overnight visit in May 2008 and one in June 2008, the children did not
appear to have been bathed. But Cornelius testified that despite her concerns
regarding the children being fed and being returned dirty, the children were placed
back with Father on June 10, 2008.
Cornelius testified that she visited Father and the children on June 17, 2008,
and that there was a rotten odor in the air and stains, trash, and “[f]ood, just kind of
11
old food,” on the floor but no food to eat in the home. When she opened the
bedroom door, she found the children lying in bed. They did not respond to her,
which she testified was unusual. She testified that she visited again on June 27,
2008, and that the conditions had worsened—more food on the floor, unclean
dishes in the sink, and a rotten odor—except that there was some edible food in the
home. The next time that she saw the children was when they were taken to the
hospital due to A.B.’s injuries on July 8, 2008. She testified that the children were
placed in foster care that night and that she believed that Father had placed the
children in a dangerous environment.
c. Dr. Ryan
Dr. Ryan, a licensed psychologist and professional counselor, testified that he
conducted two psychological evaluations of Father and one diagnostic consultation,
all of which were admitted into evidence in the second trial. The consultation and
the first evaluation were also admitted into evidence in the first trial.
Dr. Ryan testified that the global assessment of functioning (GAF) assesses
how well a person is doing in life and that a person with a GAF under 50 is usually
hospitalized. Dr. Ryan testified that Father’s GAF was 75 in 2007, 55 in 2009, and
55 in 2011. He testified that he diagnosed Father with attention deficit hyperactivity
disorder NOS, adjustment disorder with depressive mood, bipolar disorder NOS,
and chronic motor tick disorder but that he did not see any sign of psychosis or
paranoia. Dr. Ryan also testified that Father did not report being on any medication
12
in 2007, 2009, or 2011 and that a psychiatrist’s report in 2009 indicated that a
referral for a pharmaceutical patient assistance program was not needed.
Dr. Ryan testified that Father was consistent in how he presented over the
years. Dr. Ryan also testified that lacking insight into one’s own behavior and how
the behavior affects others is a problem in parenting children but that whether it is a
dangerous situation—whether it endangers a child’s emotional or physical well-
being—depends on what the problematic behavior is. Dr. Ryan testified that
Father’s insight mildly improved by the last evaluation and that Father’s problematic
issues were the disorders with which Dr. Ryan had previously diagnosed him. Dr.
Ryan testified that having bipolar disorder does not prevent someone from being a
good parent and that Father did not present as a dangerous person. Dr. Ryan
further testified that everyone has problematic behavior and that Father was able to
control his behavior when he chose. Dr. Ryan also testified that an inability to
control one’s own behavior, for example, illegal drug use, coupled with lack of
insight could endanger a child.
Dr. Ryan testified that Father denied needing to change anything and denied
needing counseling but that Dr. Ryan believed that Father did need counseling
because of his separation from his children. Dr. Ryan testified that he did not
recommend that Father go to anger management classes. When asked whether
Father would likely participate in services offered through TDFPS, Dr. Ryan said,
“Possibly.”
13
d. Dr. Carl Shaw
Dr. Shaw, a physician at the emergency department of Cook Children’s
Hospital, testified that he examined A.B. on July 8, 2008, and that A.B. had several
locations of bruising around his head. Shaw testified that x-rays detected no
fractures and that A.B.’s injuries were not life-threatening but that they were not the
type of injuries that a toddler would sustain by an accidental fall or successive falls
within a short amount of time. Dr. Shaw testified that he wrote in his affidavit that
A.B.’s injuries were likely consistent with physical abuse.
Dr. Shaw testified that A.B.’s skeletal survey showed no evidence of prior
bone injuries. Dr. Shaw testified that in his affidavit, his answer to the question of
whether he felt that the child would be in immediate danger of additional injury or at
a substantial risk of harm if released to the parents was “[P]ossibly so.” Dr. Shaw
testified that he could not tell whether the injuries happened at one time or at
different times.
e. Bryan Knox
TDFPS investigator Knox testified that he began interacting with Father when
TDFPS determined that Father and Cornelius had a lot of conflict. He testified that
he went to Father’s apartment on July 8, 2008, to investigate the possible abuse of
A.B. Knox testified that another investigator and the police were also there. But
according to Knox, Father refused to let anyone but Knox into the apartment, and
Father called the police officers “pigs.”
14
Knox testified that they all went to the hospital; that Father was “[a]ngry,
angry, angry”; that Father told an officer to “suck his dick”; and that the children were
present and heard Father say that. Knox told the jury that he had never seen a
parent treat a police officer that way. He also testified that in domestic violence
cases, it is detrimental to the children’s well-being to observe the emotional abuse.
Knox further testified that from around April 2008 to June 2008, he had been
inside Father’s apartments. Knox testified that Cornelius was with him when he
visited the first apartment, which was clean—no bugs, no mice, no smell, and
nothing endangering to a child. Knox testified that Cornelius was not with him when
he visited Father’s second apartment, which Knox said was nothing more than
messy. Knox said that he did not have a bad working relationship with Father and
that he was a referee of sorts between Cornelius and Father.
f. Val Trammell
Trammell, a TDFPS case aide, testified that she observed visits at the TDFPS
office between Father and his children from October 2008 until June 2009 while the
children lived with foster parents. She acknowledged that other visitation facilities
permitted TDFPS workers to observe visitations through a mirror but that theirs was
more intrusive and stressful for those being observed because the observers stood
or sat in the doorway and were visible to those being observed.
Trammell testified that at virtually every visit, Father displayed a lot of anger
toward TDFPS in front of his children at the beginning of the visit, said things that
are not supposed to be said in front of children on a visit, and got loud on occasion.
15
She said that while this was going on, the children would get very quiet, look down,
and move to the other side of the room as if they were trying to make themselves
invisible. Trammell clarified that Father’s anger was primarily directed at TDFPS
and was never directed at the children. She said that TDFPS workers had to call
the security guard at times but that when Father calmed down and played with the
children, things went fairly well, and the children did not appear to be afraid of him.
She also testified that Father did not act hostilely toward TDFPS on one occasion
when his attorney and the attorney ad litem were present, showing her that Father
had the ability to control his anger.
Trammell further testified that she would pick the children up from J.H. and
G.H.’s home to take them to the TDFPS office visits, that J.H. and G.H.’s home was
beautiful, and that she was surprised by how quickly the children had bonded with
them.
g. Melissa Reagan-Perez
Perez, a Tarrant County community supervision officer, testified that Father
was on deferred adjudication community supervision from September 2008 to
October 2009, at which point he was successfully discharged and the case was
dismissed.
Perez noted that one community supervision condition had required that
Father take medication, that Father was not initially compliant in this regard, that
Father obtained a psychiatric evaluation in 2009, and that the psychiatrist did not
recommend medication after that evaluation. Perez also noted that Father was
16
angry and agitated during most of his visits with her and that he would repeat a point
continuously to make sure that it was heard but did not generally scream or yell.
She testified that the community supervision department was only required to have
two contacts with Father per month but that it had thirty contacts with him in June
2009. She explained that these contacts were mostly the police department,
TDFPS, or other agencies calling the community supervision office and asking it to
address the issue of Father contacting them too often.
Perez testified that from July 2009 to October 2009, Father’s apartment was
generally cluttered and very unclean but that the children were not living there
during that time. She explained that fast food wrappers and containers were left out.
Perez opined that Father’s apartment was not an appropriate place for children to
live “primarily because there [wa]s a very strong odor from the litter box.” Perez
testified that she also detected a litter box odor as well as human body odor and
noticed that the apartment was cluttered when she visited Father’s apartment in
January 2011.
Perez testified that at the time of trial, Rains was on Perez’s community
supervision caseload for injury to the elderly and that Rains had previous charges of
theft as a juvenile and of assault on the elderly. Perez testified that Rains, who was
pregnant, moved in with Father in May 2010, moved out in September 2010, and
then moved back in with Father in December 2010. Perez added that Rains
identified Jeff Jones, who Perez believed lived with Father and Rains, as her
boyfriend and identified Father as the father of her child. Perez further testified that
17
Rains had another child but did not have custody of that child. Because Perez had
never seen Rains interact with children, Perez could not opine as to whether A.B.
and H.B. would be safe around Rains.
h. J.H.
J.H. testified about her previous experience with children, which included
working in daycares and in preschools. She testified that she and her husband want
to adopt A.B. and H.B. She also testified about her daily routine with the children,
which includes playing with H.B. in the morning after G.H. takes A.B. to school,
getting H.B. ready for pre-K, taking H.B. to pre-K, resting in the afternoon, picking
the children up from school, working on homework and having snacks with them,
letting them play, having dinner, bathing them every other day, and putting them to
bed.
J.H. testified that she told A.B.’s psychologist that A.B. had a tendency to fall
down and say that she and G.H. had pushed him. J.H. testified that Father had filed
several reports with TDFPS regarding the couple’s treatment of the children. She
explained that these reports were disruptive because as a result of the reports, the
children were interviewed at school, the children cried, and A.B. had temper
tantrums. Finally, she testified that she had never called the police regarding Father
but that G.H. had.
i. Elaine Johnson
Johnson, a licensed professional counselor and children’s play therapist,
testified that she first saw the children in March 2009. She explained that she
18
evaluated them over a period of time in play therapy. She testified that when his
foster parents brought him in, A.B. was tired, and his affect was “rather flat.” She
described his play as repetitive and purposeless but very cooperative. Johnson
testified that H.B. was aloof and did not have a strong connection with anyone
except A.B., to whom she was greatly attached, and that Johnson was still working
with H.B. on empathy. Johnson testified that H.B. displayed unusual distress
regarding potty training.
Johnson also testified that A.B. tried to bite J.H. on one occasion but that this
was not unusual for children who have gone through some sort of trauma. She also
said that A.B. hit J.H. and G.H. early on but that the trigger was not always known.
She further testified that while the children played out fantasies, they sometimes
said things out of the ordinary. She explained that A.B. said things about someone
stealing children, “I don’t want them dead,” and “cutting their brains out.” Johnson
testified that she went a period of time without seeing the children but that in
October 2010, A.B. was having trouble transitioning to going to school and that after
expending his energy all day, he was sometimes too exhausted to eat when he got
home. She testified that at the time of trial, they were working on modifying
behavior so that the children will ask the foster parents for help when needed and to
stop meltdowns before they occur.
Finally, Johnson testified that she was really impressed with J.H. and G.H.,
that they had a beautiful relationship with each other and with the children, and that
the children call them “[M]ommy” and “[D]addy” and call Father their “other [D]addy.”
19
j. Joanna Letz
TDFPS caseworker Letz testified that she worked with children who had been
put into foster care, with the foster parents, and with the birth parents. She
explained that she had been the children’s caseworker since August 2010 and had
been working with Father since October 21, 2010. She testified that in order to
consider placing children back with a parent, she must visit the parent’s home. She
testified that she went to Father’s apartment on October 20, 2010, but that he was
not there.
Letz testified that the first time that she saw Father was at the courthouse on
October 21, 2010. She claimed that she had tried to introduce herself to him there
but that he had told her that he could not speak to anyone without his attorney being
present. She testified that she saw him next at the TDFPS office, where she met
with Father and his attorney about Father’s service plan. She said that even though
Father had already completed counseling, parenting classes, anger management,
and psychological examinations, she offered them again. She testified that Father
agreed only to the completion of another psychological examination.
Letz testified that she went to Father’s apartment again in January 2011. She
stated that a man first opened the door, and then a woman opened the door and told
Letz that she was not supposed to be there. Then Father told Letz that she could
not come in without his attorney being present. Letz admitted that Father’s attorney
had indeed told her not to speak with Father without his attorney and that she
believed that it was also “[s]upposed to be” TDFPS’s policy. She went to Father’s
20
home without contacting his lawyer because she believed that it was her “duty” and
her “job.”
Letz testified that she had seen J.H. and G.H.’s home many times and that it
was inspirational to watch how they parent the children. She testified that the
children had been with J.H. and G.H. for just over two years; that they had a loving
relationship with the children; and that the children received love, nurturing,
kindness, emotional support, security, and structure in J.H. and G.H.’s home.
Letz testified that TDFPS’s permanency goal for Father and his children had
been reunification in 2008 but that in October 2010, when she tried to visit Father’s
apartment, it was for Father’s rights to be terminated and for the children to be
adopted. Letz testified that in her opinion, it was in the children’s best interest for
Father’s parental rights to be terminated.
k. Sheryl Coaxum
Coaxum, assistant manager of the Cherry Hill Apartments, testified that
Father’s lease there began on June 9, 2008, and that he paid his rent on time. She
testified that Father had lease violations in September and October 2010 for
unsanitary living conditions, which were noticed by the pest control company. She
testified that Father had requested that pest control treat his apartment but that on
September 28, 2010, the pest control company personnel told Father that they
would not treat his apartment until he cleaned it, especially the area behind the
microwave where pest control found dead roaches. She testified that pest control
could not treat Father’s apartment on October 5 because Father had not complied
21
with instructions to clean it and that they visited Father’s apartment twice after that.
Coaxum also testified that maintenance employees would not fix Father’s
dishwasher in September 2010 until he cleaned the dirty floors. She testified that
she had no record of a complaint or a lease violation for unsanitary living conditions
during June and July 2008 while his children were living with him.
Coaxum further testified that Father told her that Rains was his girlfriend, that
Rains had been living with him, and that Rains was pregnant with his child.
l. Betty Williams
Williams, who resided in the Cherry Hill Apartments, the same apartment
complex in which Father resided, testified that she had known Father for eleven or
twelve months at the time of trial. She testified that Father would come over to her
apartment to work on her computer. She described Father’s temperament as “laid
back” and testified that he would help her do anything that she could not do, that he
was very respectful, and that she had never seen him get upset about anything or
lose his temper. She testified that he seemed very concerned about his children.
3. New Testimony from Repeat Witnesses
a. Chris Conner
Conner, a paramedic with the Bedford Fire Department, offered essentially the
same testimony that he had offered during the first trial.12 However, instead of
12
See A.B., 2010 WL 2977709, at *4.
22
describing H.B. as appearing lethargic,13 he testified in the second trial that she
appeared normal and did not exhibit signs of having had a seizure.
b. Janice Barker
As an employee of Volunteers of America, Barker taught Father parenting and
homemaking skills from January 2008 to March 2008.14 In addition to offering the
testimony that she had offered during the first trial,15 Barker testified during the
second trial that when she revisited Father in July 2008, Father lived in a different
apartment than he had lived in before. She testified that this apartment was clean,
that he had no pets, and that she looked around but did not see any animal feces or
roaches or notice an overwhelming odor.
c. Nurse Donna Wright
In addition to providing the testimony that she had provided during the first
trial,16 Wright testified during the second trial that in July 2008, A.B. had language
delays but no other developmental delays. She testified that there are many
reasons that a child can have language delays, including insufficient stimulation,
trouble hearing, multiple ear infections, or neurological delays. She testified that in
her opinion, this inability to verbalize can frustrate a child, cause temper tantrums,
13
See id.
14
See id. at *8.
15
See id. at *8–9.
16
See id. at *14.
23
and cause behavioral problems that can jeopardize a child’s physical or emotional
well-being.
Wright next testified about H.B.’s October 2007 failure-to-thrive diagnosis,
which she opined was caused by not being offered enough food. In addition to
discussing the dates, weights, and percentages that she had addressed in the first
trial, she added that H.B. was in the fiftieth percentile in weight on February 20,
2007, that she dropped to between the third and the fifth percentile by April 9, 2007,
and to below the third percentile by May 3, 2007. She opined that a parent would
notice such a drop but testified that H.B.’s doctors were not ready to make a failure-
to-thrive diagnosis as of May 3, 2007, and that she, too, would have needed to run
more tests at that time before making such a diagnosis.
Wright testified that H.B.’s physical or emotional health was endangered by
her failure to thrive because it caused her to have a seizure. She testified that at the
time of H.B.’s evaluation in July 2008, H.B. had language delays that “would have a
potentially endangering effect on [her] physical or emotional wellbeing.” Wright
further testified that H.B. had motor skill developmental delays that could continue
over time and affect her ability to get a job, to play sports, and to do physical labor,
which Wright opined would also have a tendency to endanger H.B.’s well-being.
Wright also testified that H.B.’s medical records noted “some concern about the
development of [her] head and cranium.” Wright explained that insufficient nutrition
can inhibit brain cell growth and endanger a child’s physical and emotional well-
being and can do so permanently if it is not corrected.
24
d. Dr. Peter Lazarus
In addition to offering testimony similar to the testimony that he had offered
during the first trial,17 Dr. Lazarus testified during the second trial that he would have
needed to do a history and physical exam, some preliminary tests, and a nutritional
consult to rule out medical reasons before making a failure-to-thrive diagnosis in
May 2007.
He testified that failure to thrive can lead to repeated infections or problems
with psychosocial development—which includes “development anywhere from gross
motor, fine motor, language skills, or social skills.” He also testified that “[i]f those
skills and that type of development [were] impeded, [that] would . . . pose a danger
to a child’s physical and emotional wellbeing” by keeping the child from meeting
milestones.
He further testified that problems with head growth, which H.B. experienced
when she was diagnosed with failure to thrive, could endanger a child’s physical and
emotional well-being by leading to retardation. When asked if H.B.’s failure to thrive
could have led to retardation if her condition had gone untreated, Dr. Lazarus said
that it could have led to development that was below what would be expected of her.
17
See id. at *5.
25
e. Jennifer
Jennifer, one of the children’s initial foster parents, repeated during the
second trial the testimony that she had offered during the first trial,18 except that she
did not state this time that H.B. had used profanity when she was two years old.
f. Constance Burdick
In addition to repeating the testimony that she had offered during the first
trial,19 Burdick, a clinical social worker with Catholic Charities Diocese of Fort Worth,
testified during the second trial that a psychologist had diagnosed Father with
paranoia. When Father’s attorney showed her Dr. Ryan’s evaluation, Burdick stated
that this evaluation, which she said was the most current evaluation, did not list
paranoia as a diagnosis.
Also, Burdick testified that her clinical opinion in 2009 was that Father was
“low functioning in insight and impulse control,” which could endanger the physical
or emotional well-being of one’s child. She explained that a parent who was low
functioning in insight would have difficulty knowing how to care for an ill child, an
injured child, or a child with developmental problems. She also explained that
parents with low impulse control would be more inclined to act spontaneously
without thinking, to “smack a child,” and to set a bad example for their children.
18
See id. at *26–28.
19
See id. at *19–20.
26
g. G.H.
In addition to repeating the testimony that he had offered during the first trial,20
G.H. testified during the second trial that A.B. and H.B. were in kindergarten and
pre-K, respectively, in an exemplary school district and that A.B. was in Indian
Guides, which he enjoyed. He testified that A.B. was considered “special needs” for
speech language delays but that they worked with him a lot outside of school and
that he was improving. G.H. also testified about the children’s daily routine and
about the training that he and J.H. had to receive and maintain to be licensed foster
parents.
G.H. testified again about Father’s online activities but this time added that
G.H. had found the profile page of a seventeen-year-old female who claimed to be
in a relationship with Father and that some of the photos on her profile page
depicted her with drug paraphernalia.
h. Father
i. Testimony Regarding Rains
In addition to repeating the same testimony that he had offered during the first
trial,21 Father testified during the second trial that the only other person who lived in
his apartment or stayed overnight was Rains because she was due to have a baby
in March 2011. He explained that he was unsure who the father was because he
20
See id. at *28.
21
Id. at *1–4, 7–10, 16–23, 28–30, 32.
27
and Rains separated for about one month and that Jones, who spent some time at
Father’s apartment to protect Rains while Father was gone, could be the father.
Father said that Rains was seeking to qualify for Social Security disability benefits
but that he was unsure what disability she had.
Father testified that he did not know until after Rains became pregnant that
she was on community supervision for injuring her grandmother. He said that he
would still consider Rains to be a safe person for his children to be around if her
actions toward her grandmother were out of protection for her child rather than out
of pure anger toward her grandmother.
ii. Testimony Regarding His Apartment
Father testified that his apartment was probably not as nice as J.H. and G.H.’s
home but that it was the nicest apartment that he could afford. Father stated that his
children were not living with him when Cornelius came to his apartment with Knox to
make her initial reports or when the maintenance workers came to his apartment.
He explained that he had not let Letz into his apartment because he and his attorney
had agreed that anyone who wanted to see his apartment would have to obtain
permission from his attorney to enter the apartment.
Father testified that he had a king-size bed with two twin mattresses
underneath it that functioned as box springs and that he also had couches, an
entertainment center with a TV and computer on it, and a computer table in the
living room. He stated that he did not have a toddler bed or a crib yet but that he
28
could obtain those. Father testified that he had only one cat and never had more
than one animal in the apartment that he began renting in June 2008.
iii. Testimony Regarding Education and Income
Father testified that he had taken a few classes at Tarrant County Community
College as recently as spring 2010 in pursuit of one of two computer degrees—
information security technology or personal computer support. He testified that his
cumulative grade point average in college was a 3.8 and that he planned on
returning to classes when the TDFPS case was over.
Father stated that he could not remember what his last job was and that he
continued to receive supplemental security income despite a psychiatrist telling him
that he showed no signs of having a mental illness. He explained that the Social
Security Administration had not done a review of his disability status since that
psychiatrist’s report. Father testified that his income consisted of his social security,
food stamps, and the money that he earned from donating plasma. He said that he
was not financially ready to have the children returned but that if the children were
returned to him, his food stamps would increase from $360 to $400, which would be
plenty of money.
Father testified that during a time period that included March 2010, he had an
advertisement on his Myspace website for an adult website, an affiliated network,
which he joined on September 28, 2007. He stated that he did whatever he could
do to make money and that he got a percentage of the proceeds that the adult
website made off his referrals.
29
iv. Testimony Regarding TDFPS
Father testified that when Mother’s family members were given possession of
the children after H.B. was released from the hospital, Father only got to see the
children one time over a two- or four-month period, and so he had to “bug and bug
and bug” TDFPS to get visits at the TDFPS office. Father testified that he felt like he
had to be aggressive, argumentative, and demanding toward TDFPS because they
would not look at the facts and would not return his phone calls to give him an
update or to tell him what to do next.
He testified that when he was permitted to take the children away from the
TDFPS office for visits, the bus ride was so long that most of their time together was
spent on the bus or at the park. He testified that he fed them during these visits but
that he returned them dirty from their time at the park. He testified that he had to
send e-mails, make phone calls, and file complaints to get his visits to last over four
hours.
Father admitted that when he and the children were at the hospital after A.B.
was injured, he was highly upset that TDFPS was investigating him again and that
he did not act maturely toward them. Father testified that when he was released
from jail after pleading guilty to injury to a child, he tried to contact his former
caseworker, Ruth Groomer, about his service plan and had to call her many times,
send her e-mails, and go “over her head” to get the service plan started. He testified
that he retained an attorney, that his attorney filed a motion to compel, that the
30
service plan was put in place, and that he completed the service plan with the
exception of the batterers’ intervention class.
Father testified that he had a horrible relationship with Groomer and that he
also had to call, e-mail, and go “over her head” repeatedly to set up visits with his
children. He testified,
[W]hen I tried to be calm and collected with them, you know, when I
tried to do the right thing and leave a voicemail and wait for a call back,
I would never get a call back. It was almost like, it is [Father], forget it;
don’t call him back. You know, it’s like they blew me off every chance
they got.
The only way that I could actually get them to respond to me was
to call and call and call and e-mail and e-mail, and make complaints.
Father stated that when he went to the TDFPS office for visits, he had words with
Groomer because Groomer accused him of being a child abuser, thought he was a
horrible person, did not treat him as a parent, and did not respect him. He admitted
that he got into arguments with TDFPS personnel at the TDFPS office but that this
did not occur each time and did not occur in front of the children.
Father testified that he filed several reports with TDFPS because he had
genuine concern for the children’s well-being, such as concerns that they were
being pushed while they were in J.H. and G.H.’s care.
v. Testimony Regarding H.B.’s Failure to Thrive
Father testified that he was small but not malnourished as a child and that he
suffered from seizures as a child. He said that when he and Mother were together,
H.B. was eating and doing everything that she was supposed to be doing. Father
31
said that from July 2007 until September 2007, he watched H.B. “a few times a
week, but not on a consistent basis” but that when he cared for her, she ate normal
table “scraps” like pizza or whatever he was eating along with milk or formula.
Medical records admitted at both trials indicate that Mother’s sister babysat the
children while Mother was at work and that Father watched the children “sometimes”
and on some weekends but not consistently.
Father testified that he was unable to get to the hospital to be with H.B. after
her seizure until the following Monday because there was no bus transportation for
him over the weekend but that he spent “[e]very single day, except for that Saturday
and Sunday” at the hospital. He testified that he was not knowledgeable enough
during the time that H.B. had her seizure but that he was now familiar with
developmental goals and milestones of children. He also testified that in addition to
taking the classes that were required by his service plan, he took a class called
“Positive [B]rain [D]evelopment” on his own.
II. Sufficiency Review of Endangerment Evidence
In his first and second points, Father argues that there is no evidence or
factually insufficient evidence that he (1) knowingly placed or knowingly allowed A.B.
and H.B. to remain in conditions or surroundings that endangered their physical or
emotional well-being or (2) engaged in conduct or knowingly placed the children with
32
persons who engaged in conduct that endangered their physical or emotional well-
being.22
A. Burden of Proof and Standards 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.”23 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.24 We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent.25
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
22
See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2012).
23
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).
24
Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).
25
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.).
33
interest of the child.26 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. 27
Termination decisions must be supported by clear and convincing evidence.28
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.”29
Due process demands this heightened standard because termination results in
permanent, irrevocable changes for the parent and child.30
In evaluating the evidence for legal sufficiency in parental termination cases,
we determine whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction that the grounds for termination were proven.31 We review
all the evidence in the light most favorable to the finding and judgment. 32 We
resolve any disputed facts in favor of the finding if a reasonable factfinder could
26
Tex. Fam. Code Ann. § 161.001 (West Supp. 2012); In re J.L., 163 S.W.3d
79, 84 (Tex. 2005).
27
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) (op. on reh’g).
28
Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).
29
Id. § 101.007 (West 2008).
30
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).
31
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
32
Id.
34
have done so.33 We disregard all evidence that a reasonable factfinder could have
disbelieved.34 We consider undisputed evidence even if it is contrary to the
finding.35 That is, we consider evidence favorable to termination if a reasonable
factfinder could, and we disregard contrary evidence unless a reasonable factfinder
could not.36
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province.37 And even
when credibility issues appear in the appellate record, we defer to the factfinder’s
determinations as long as they are not unreasonable.38
In reviewing the evidence for factual sufficiency, we give due deference to the
jury findings and do not supplant the verdict with our own.39 Here, we determine
whether, on the entire record, a factfinder could reasonably form a firm conviction or
belief that the parent violated subsection (D) or (E) of section 161.001(1).40 If, in
33
Id.
34
Id.
35
Id.
36
Id.
37
Id. at 573, 574.
38
Id. at 573.
39
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
40
Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
35
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.41
When we reverse on factual sufficiency grounds, then we must detail in our
opinion why we have concluded that a reasonable factfinder could not have credited
disputed evidence in favor of its finding.42
B. Law on Endangerment
“Endanger” means to expose to loss or injury, to jeopardize.43 It requires
more than a mere threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment.44
To prove endangerment under subsection (D), TDFPS had to prove that
Father (1) knowingly (2) placed or allowed his children to remain (3) in conditions or
surroundings that endangered their physical or emotional well-being.45 Subsection
(D) focuses on dangerous conditions or surroundings that endanger the physical or
41
H.R.M., 209 S.W.3d at 108.
42
J.F.C., 96 S.W.3d at 266–67.
43
Boyd, 727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
44
Boyd, 727 S.W.2d at 533.
45
See Tex. Fam. Code Ann. § 161.001(1)(D).
36
emotional well-being of the children.46 It focuses on the suitability of the children’s
living conditions.47 Thus, under subsection (D), it must be the environment itself that
causes the children’s physical or emotional well-being to be endangered, not the
parent’s conduct.48
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the children’s physical well-being was the direct result of Father’s
conduct, including acts, omissions, or failures to act.49 Additionally, termination
under subsection (E) must be based on more than a single act or omission; the
statute requires a voluntary, deliberate, and conscious course of conduct by the
parent.50 It is not necessary, however, that the parent’s conduct be directed at the
children or that the children actually suffer injury.51 The specific danger to the
children’s well-being may be inferred from parental misconduct standing alone.52 To
46
In re M.C., 352 S.W.3d 563, 566 (Tex. App.—Dallas 2011, no pet.).
47
Id.
48
Id.
49
In re M.C.T., 250 S.W.3d 161, 169 (Tex. App.—Fort Worth 2008, no pet.);
see Tex. Fam. Code Ann. § 161.001(1)(E).
50
M.C.T., 250 S.W.3d at 169; see Tex. Fam. Code Ann. § 161.001(1)(E).
51
Boyd, 727 S.W.2d at 533; M.C.T., 250 S.W.3d at 168–69.
52
Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort
Worth 2004, pet. denied).
37
determine whether termination is necessary, courts may look to parental conduct
occurring both before and after a child’s birth.53
C. Legal Sufficiency Analysis
As in the first trial, we first address whether the evidence is legally sufficient to
support termination of Father’s parental rights pursuant to subsection (D) or (E).54
Much of the same evidence that we considered to be legally sufficient to
terminate Father’s parental rights pursuant to subsection (D) and (E) in the first trial
was admitted into evidence during the second trial.55 Specifically, there was
evidence that Father cared for H.B. to some extent around the time that she was
diagnosed with failure to thrive due to malnourishment.56 Thus, as it did last time,
this evidence supports an inference that Father knew of and contributed to H.B.’s
failure to thrive and, consequently, that Father endangered her by underfeeding her
and knowingly allowed her to remain in a malnourished condition that endangered
her.57 Accordingly, viewing all the evidence in the light most favorable to the
termination judgment and disregarding all contrary evidence that a reasonable
factfinder could disregard, we again hold that some evidence exists that would
53
In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
54
See A.B., 2010 WL 2977709, at *35.
55
See id.
56
See id.
57
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); A.B., 2010 WL 2977709, at
*35–36.
38
support a factfinder’s firm belief or conviction that Father violated subsections (D)
and (E), and we overrule those portions of Father’s first two points challenging the
legal sufficiency of the evidence to support the termination of his parental rights on
these two grounds.58
D. Factual Sufficiency Analysis
As we did in the first opinion, we next address whether the evidence is
factually sufficient to support termination of Father’s parental rights pursuant to
subsection (D) or (E).59 We review all of the evidence, focusing on the evidence
concerning the three allegations that TDFPS relies on as establishing subsections
(D) and (E) grounds for termination: (1) H.B.’s failure-to-thrive diagnosis, (2)
Father’s hostile behavior, and (3) the conditions of Father’s homes.60
1. Failure to Thrive
We concluded in our first opinion that the evidence relating to H.B.’s failure-to-
thrive diagnosis was factually insufficient to terminate Father’s parental rights under
subsection (D) or (E) because a reasonable factfinder could not have formed a firm
belief or conviction that Father underfed H.B. or knowingly allowed her to be
underfed.61
58
See J.P.B., 180 S.W.3d at 573; A.B., 2010 WL 2977709, at *36.
59
See A.B., 2010 WL 2977709, at *36.
60
See id.
61
See id. at *38.
39
a. Knowledge
Most of the evidence from the first trial relating to Father’s knowledge was
also offered in the second trial—namely, EMT Chris Conner’s testimony that H.B.
did not appear to be emaciated and Father’s testimony that Mother took H.B. to the
doctor for her check-ups without Father, that he thought that H.B. was small
because she took after him, and that he did not know that H.B. was failing to
thrive.62 While Wright added in the second trial that a parent would have noticed
H.B.’s drop from the fiftieth to below the fifth percentile in weight from February to
April 2007, this is not evidence that Father knew that H.B. was failing to thrive.
Indeed, the doctors did not even know at that point that H.B. was failing to thrive,
and Wright and Dr. Lazarus both testified that they would have needed to conduct
more tests before making such a diagnosis in May 2007.
Therefore, no additional evidence was admitted during the second trial to
change our determination that the evidence is factually insufficient to support a
finding that Father knew that H.B. was failing to thrive.63
b. Conduct
As for Father’s conduct, the evidence in the second trial does not show that
Father had the children more often after he and Mother separated than the evidence
62
See id.
63
See Tex. Fam. Code Ann. § 161.001(1)(D); C.H., 89 S.W.3d at 28–29; A.B.,
2010 WL 2977709, at *38.
40
in the first trial showed.64 Just as in the first trial, some evidence in the second trial
shows that Father had the children daily while Mother worked from 3:00 p.m. to
midnight, while other evidence shows that Father had the children only
“sometimes.”65 And in the first appeal, we concluded that even if Father had the
children daily while Mother worked, the evidence was insufficient to terminate under
subsection (E).66 Also, as in the first trial, the evidence in the second trial shows
that when Father took care of H.B., he fed her table “scraps”, such as pizza, along
with milk.
Therefore, no additional evidence was introduced during the second trial to
change our determination that the evidence is factually insufficient to show that
Father’s conduct after he and Mother separated endangered H.B. by causing or
contributing to her failure to thrive.67
TDFPS appears to argue that because Father and Mother did not separate
until July 2007, Father had sufficient contact with H.B. during April and May 2007,
when H.B. was falling off the growth chart, to tie his conduct to her failure to thrive.
Indeed, evidence that Father had regular contact with H.B. and that H.B. was falling
64
See A.B., 2010 WL 2977709, at *38.
65
See id. at *38 & n.71.
66
See id. at *38–39.
67
See Tex. Fam. Code Ann. § 161.001(1)(E); C.H., 89 S.W.3d at 28–29; A.B.,
2010 WL 2977709, at *38–39.
41
off the growth chart during this time period was admitted in both trials.68 However,
there is no evidence in the appellate record of either trial that Mother and Father
were not offering H.B. enough food at that time.69 Instead, the only evidence in this
regard is Father’s testimony during the second trial that H.B. was eating normally
when Mother and Father were together.
While the jury could have reasonably inferred the requisite conduct based on
a diagnosis of failure to thrive due to malnutrition in April or May 2007, the jury did
not have evidence of such a diagnosis.70 Instead, the jury in the second trial had
testimony from both Wright and Dr. Lazarus that they would have needed to conduct
a series of tests before making a failure-to-thrive diagnosis at that time. Therefore,
no additional evidence was introduced during the second trial to change our
68
See A.B., 2010 WL 2977709, at *3.
69
Cf. In re A.H.A., No. 14-12-00022-CV, 2012 WL 1474414, at *8 (Tex. App.—
Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.) (noting that the children had
been going through the garbage cans looking for food and that the mother admitted
that rations tended to run very low toward the end of the month); In re H.N.H., No.
02-11-00141-CV, 2012 WL 117861, at *2 (Tex. App.—Fort Worth Jan. 12, 2012, no
pet.) (mem. op.) (stating that the mother endangered her child by failing to wake up
in time to feed her child before the child left for school).
70
See In re S.H.A., 728 S.W.2d 73, 86 (Tex. App.—Dallas 1987, writ ref’d
n.r.e.) (inferring that parents did not properly feed child, despite little direct evidence
as to what foods they fed the child on a daily basis, when evidence included a
diagnosis of failure-to-thrive caused by malnutrition).
42
determination that the evidence is factually insufficient to show that Father’s conduct
regarding H.B.’s nutrition before he and Mother separated endangered H.B.71
The main evidentiary difference between the first and second trials is that
Wright and Dr. Lazarus supplemented their testimony during the second trial by
addressing the ways in which A.B.’s and H.B.’s physical and emotional well-being
had been endangered by their developmental delays. However, because there was
no new evidence that these developmental delays were the direct result of Father’s
conduct,72 or that Father knowingly placed or allowed his children to remain in
conditions that endangered them, Wright’s and Dr. Lazarus’s testimony in this
regard did not support termination under subsection (D) or (E).73
Accordingly, viewing all the evidence and affording due deference to the jury
findings, we again hold that the evidence relating to H.B.’s failure-to-thrive diagnosis
is factually insufficient to terminate Father’s parental rights under subsection (D) or
(E) because a reasonable factfinder could not have formed a firm belief or conviction
that Father underfed H.B. or knowingly allowed her to be underfed.74
71
See Tex. Fam. Code Ann. § 161.001(1)(E); C.H., 89 S.W.3d at 28–29; A.B.,
2010 WL 2977709, at *38–39.
72
See M.C.T., 250 S.W.3d at 169.
73
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
74
See id.; H.R.M., 209 S.W.3d at 108.
43
2. Hostile Behavior
In our first opinion, we held that the evidence of A.B.’s injuries was factually
insufficient to terminate Father’s parental rights under subsection (D) or (E).75
Therefore, even if Father committed injury to a child—his criminal case was
dismissed after he successfully completed deferred adjudication community
supervision—TDFPS needed to offer additional evidence in the second trial to show
that Father engaged in a continuing course of conduct that endangered his
children’s well-being.76
In the second trial, TDFPS did not show that Father had injured either of his
children on another occasion. Indeed, Dr. Shaw, the Cook Children’s Hospital
emergency department physician who examined A.B. in July 2008, testified that
A.B.’s skeletal survey showed no evidence of prior bone injuries and that he could
not tell whether A.B.’s injuries happened at one time or at different times.
However, TDFPS argues that the incident involving A.B. is just one of many
examples of Father’s hostile and violent course of conduct toward others—namely,
police officers and TDFPS caseworkers—under subsection (E).77 TDFPS contends
75
See A.B., 2010 WL 2977709, at *37.
76
See M.C.T., 250 S.W.3d at 169.
77
See Tex. Fam. Code Ann. § 161.001(1)(E); M.C.T., 250 S.W.3d at 169.
44
that both the children’s observation of this behavior and Father’s inability to control
or understand the effect of his behavior endangered the children’s well-being.78
a. Conduct toward Police Officers
The only new evidence admitted in the second trial regarding Father’s conduct
toward police officers is the testimony of Knox, the TDFPS investigator, that the
children were present when Father cursed at the officers at Cook Children’s
Hospital. However, we could infer this fact when we addressed this issue in the first
appeal, based on evidence from the first trial that the children were at the hospital
and that Father was extremely loud.79 Indeed, we noted in our first opinion that
Brooks, the TDFPS investigator charged with investigating the July 2008 referral
regarding A.B., described Father as “so aggressive and so loud and in your face”
that on several occasions “people had to come in and tell him to be quiet or they
were going to have him taken out of the hospital.”80 Brooks even testified that this
behavior factored into her decision to remove the children that day.81 Therefore,
Knox’s testimony about Father’s conduct toward police officers was not new
evidence to support termination under subsection (E).
78
See Tex. Fam. Code Ann. § 161.001(1)(E).
79
See A.B., 2010 WL 2977709, at *13 & n.31.
80
See id. at *13 n.31.
81
See id. at *13 & n.31.
45
b. Conduct toward TDFPS
Father admitted in the second trial that he had a horrible relationship with
Groomer and that after trying to go through the proper channels and then having to
“bug” TDFPS by repeatedly calling, emailing, and going over Groomer’s head, he
felt like he had to be aggressive, argumentative, and demanding toward TDFPS for
someone to give him an update or tell him what to do next. However, our first
opinion addressed evidence of Father’s behavior toward TDFPS personnel,
evidence that the children witnessed his behavior, and evidence of how the children
responded to such behavior.82 Specifically, we described an instance in April 2009:
Father came to a visit while he was very agitated, walked straight
toward Groomer, started ranting and raving and shaking his finger in
her face, waved his arms, and screamed at her. Father said that
Groomer and the program director had lied to him about [TDFPS]’s
plan for reunification. . . . Groomer said that Father stood over her
screaming, would not sit down, and would not calm himself even after
she and the security guard had requested that he calm down. The
children retreated to a corner because they appeared to be afraid of
him. Groomer became fearful for the children to be returned to Father
and decided that [TDFPS] should terminate Father’s parental rights.
Groomer canceled Father’s visitation for that day, and [TDFPS] did not
give a make-up visit. Groomer testified that in her seven and a half
years with [TDFPS], she had never seen anyone as upset as Father
was. He was so upset that it made her fearful or anxious.83
In the first trial, we decided that such conduct was not evidence of endangerment
under subsection (D) or (E).84 Moreover, we recognized that Father’s contention
82
See id. at *21.
83
Id.
84
See id. at *40.
46
that various TDFPS workers had a vendetta against him was “somewhat supported
by evidence in the record.”85
The only new evidence in the second trial relevant to Father’s conduct toward
TDFPS caseworkers is evidence regarding the frequency of his outbursts toward
them. Specifically, Trammell, the TDFPS aide who observed visitation, testified that
Father would act out on virtually every visit from October 2008 to June 2009.
However, it was apparent from the evidence in the first trial that Father acted this
way on numerous occasions: Groomer had testified that two TDFPS employees
were required to observe Father’s visits and that this was appropriate because a
guard had intervened in the visits several times due to Father’s behavior.86
Therefore, Trammell’s testimony about the frequency of Father’s outbursts toward
TDFPS employees was not new evidence to support termination under subsection
(E).
Because the second trial did not involve new evidence of Father’s hostile
conduct, evidence of Father’s conduct will again be factually insufficient to support
termination under subsection (E) absent new evidence that this conduct endangered
the well-being of his children.87
85
Id.
86
See id. at *21.
87
See Tex. Fam. Code Ann. § 161.001(1)(E).
47
c. Endangerment
Knox testified in the second trial that the children’s observations of Father’s
interactions with TDFPS endangered the children’s well-being because it is
detrimental for a child to observe emotional abuse in a domestic violence situation.
Indeed, evidence of children’s observations of domestic violence can be used to
support a finding of endangerment.88 However, as Trammell confirmed, Father
never directed his hostility toward his children during his TDFPS visits, and there is
no evidence that he directed it toward Mother either. While conduct need not be
directed at the child to constitute endangerment,89 Knox’s testimony about the
effects of domestic violence is not evidence that Father’s behavior toward TDFPS
endangered his children’s well-being and therefore not evidence in support of
termination under subsection (E).90
TDFPS contends that Father’s expression of his frustration with TDFPS
demonstrated low levels of impulse control, which endangered his children. Indeed,
we have held that an inability to control one’s anger is some evidence of
endangering conduct.91 And Burdick, the Catholic Charities social worker who
88
See, e.g., In re C.J.O., 325 S.W.3d 261, 265–66 (Tex. App.—Eastland 2010,
pet. denied); In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no
pet.).
89
See J.T.G., 121 S.W.3d at 125.
90
See A.B., 2010 WL 2977709, at *36.
91
See In re J.G.K., No. 02-10-00188-CV, 2011 WL 2518800, at *40 (Tex.
App.—Fort Worth June 23, 2011, no pet.) (mem. op.).
48
evaluated Father, testified that her 2009 report indicates that Father had low
functioning levels of impulse control. However, Dr. Ryan, who evaluated Father in
2011, and Trammell both testified that Father was able to control his behavior. And,
notably, Dr. Ryan did not even recommend anger management classes in 2011.
Therefore, even showing due deference to the jury findings as we must, we cannot
conclude based on the record that a reasonable jury could have formed a firm belief
or conviction that Father’s behavior toward others was evidence of an inability to
control his anger that endangered his children under subsection (E).92
To the extent that TDFPS claims that Father’s low levels of insight
endangered his children, we reject this argument as well. Burdick determined in
2009 that Father had low levels of insight, and Dr. Ryan agreed but noted that
Father’s insight somewhat improved by 2011. Burdick testified that, in general,
being low functioning in insight could have an endangering effect on the well-being
of one’s children. However, Dr. Ryan clarified that whether lack of insight
endangers one’s children depends on what the problematic behavior is, with illegal
drug use being an example of a problematic behavior about which lack of insight
could endanger a child. Dr. Ryan’s report noted that everyone has problematic
behavior, that Father did not use drugs or consume alcohol, and that Father’s
problematic behaviors were the disorders with which he had been diagnosed.
92
See C.H., 89 S.W.3d at 28–29.
49
As for Father’s bipolar disorder, Dr. Ryan said that this disorder does not
prevent someone from being a good parent, that Father’s bipolar disorder was in
partial sustained remission, and that Father did not present as a dangerous person.
Similarly, there is also no evidence that Father’s adjustment disorder in any way
endangered the children; rather, Dr. Ryan diagnosed Father with this disorder and
recommended counseling because of Father’s separation from his children. The
only medication that Dr. Ryan recommended was medication to treat Father’s
attention deficit disorder, and there is no evidence that this disorder, his chronic
motor tick disorder, or his GAF score endangered his children’s well-being.
Because Dr. Ryan did not testify that Father’s low level of insight exposed his
children to injury,93 and because Burdick merely testified about a threat of
metaphysical injury,94 a reasonable jury could not have formed a firm belief or
conviction that Father’s problem with understanding how his behavior affected
others endangered his children’s well-being.95
Accordingly, based on our review of the entire record and applying the
appropriate standard of review, we hold that the evidence of Father’s hostility is
factually insufficient to support the termination of his parental rights under
subsection (E) because a reasonable factfinder could not have formed a firm belief
93
See Boyd, 727 S.W.2d at 533.
94
See id.
95
See C.H., 89 S.W.3d at 28–29.
50
or conviction that Father’s behavior toward others in front of his children or his low
functioning levels of insight and impulse control endangered his children’s well-
being.96
3. Condition of Father’s Homes
First, TDFPS points to the condition of Father and Mother’s Missouri trailer.
The scant evidence in the record regarding MDSS’s first contact with the family in
June 2005 is “6/26/05 Assessment for abrasions, unsanitary living conditions that
was concluded Services needed linked initial 30 days.” That brief reference does
not provide any proof of unsanitary conditions. Further, there is no evidence that
MDSS found that A.B. was in the trailer in December 2005 when MDSS found it to
be unsanitary, without heat, and immediately threatening to A.B. Instead, as TDFPS
recognizes, the evidence shows that Father, Mother, and A.B. were not staying in
their trailer at the time but had moved to trailers that met MDSS’s minimum
standards.
As evidence of endangerment after the family moved to Texas, TDFPS points
to Porter’s depiction of the condition of Father’s first apartment in October 2007.
Porter testified that although Father was not home on October 9, 2007, she could
smell a strong odor of animal feces coming from inside. Porter testified that the
following day, she entered the apartment and smelled an odor of animal feces and
urine, observed stains and animal excrement on the floor, saw bugs in areas of the
96
See Tex. Fam. Code Ann. § 161.001(1)(E); H.R.M., 209 S.W.3d at 108.
51
home including the refrigerator and the freezer, and noticed that the walls were
ripped up.
While Porter testified that such an environment is dangerous to young children
who put things in their mouths, Porter said that she did not know what the condition
of Father’s apartment was when the children were there, and there is no evidence of
either child being at Father’s apartment during this time period. Indeed, the
evidence shows that Father was not even home from Monday, October 3, when the
bus was able to take him to the hospital to see H.B., until Monday, October 10,
when the bus, which did not operate on the weekend, was able to take him home
after H.B.’s Sunday, October 8 release. Instead, the evidence suggests that this
situation was much like the one in Missouri—one in which the animals nearly
destroyed the home while the family was out of the home for an extended period of
time and unable to return.
Furthermore, no evidence suggests that these same animal-related problems
pervaded Father’s home again. When Porter visited Father on October 10, Father
told her that he had already contacted the city pound about his inability to take the
animals anywhere without a car. And Father had only one pet, a cat, for which he
had a litter box, by the time his children were returned on June 10, 2008, the day
that he moved into his second apartment. Indeed, Father testified that he never had
more than one animal in his second apartment.
TDFPS also points to Cornelius’s testimony that she smelled a strong odor of
animal feces in Father’s apartment when she visited in October 2007. We note that
52
Cornelius also said that she could feel fleas biting her legs, that she saw roaches,
and that she observed stains on the carpet and dirty water and dirty dishes in the
dishwasher. Because no evidence suggests that the children lived in or visited
Father’s apartment in October 2007, though, neither Porter’s nor Cornelius’s
testimony about the condition of Father’s apartment at that time is evidence that the
children were exposed to harm.97
While TDFPS does not mention this evidence, we note that TDFPS
Investigator Cornelius testified in the second trial that during her visits to Father’s
apartment on June 17 and June 27, 2008, when the children were present, she saw
“kind of old food” and trash on the floor. But like one of the witnesses in the first
trial, Cornelius did not explain how the children would be harmed by the mess or
clutter that she observed.98 For instance, she did not testify that the children, who
were in the bedroom with the door shut, were crawling around on the living room
floor, had access to the food, were putting dangerously old food in their mouths, or
were endangered by trash on the floor.99 Therefore, like the witness’s testimony in
97
See Boyd, 727 S.W.2d at 533.
98
See A.B., 2010 WL 2977709, at *39.
99
Compare M.C., 917 S.W.2d at 270 (holding that the evidence of
endangerment was legally sufficient when, in part, children ate food off the floor and
out of the garbage), with In re J.R., 171 S.W.3d 558, 573 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) (holding that the evidence of endangerment was factually
insufficient when, in part, the witness did not state what kind of knife she found on
the floor, how long the knife had been there, or whether the children had access to
it).
53
the first trial, Cornelius’s testimony is not factually sufficient evidence of
endangerment under subsection (D) or (E).100
TDFPS also points to the condition of Father’s second apartment from
September 28 to November 16, 2010. During that time period, Father received
lease violations for unhealthy and unsanitary living conditions and for poor
housekeeping, pest control instructed Father to clean his apartment before they
would treat it for a roach infestation, and maintenance workers refused to make
repairs in Father’s apartment until he cleaned his floors. However, this evidence of
the conditions during fall 2010 was not evidence that these conditions existed in
Father’s apartment when the children lived there in June and July 2008. Indeed,
Coaxum testified that she had no record of unsanitary living conditions in Father’s
apartment during that time period. Because the children did not live in or visit
Father’s apartment during fall 2010 and had not done so for several months,
evidence of the apartment’s condition during fall 2010 was not evidence that the
children were exposed to harm.101
Next, TDFPS points us to the testimony of Perez, who described Father’s
apartment from July to October 2009 as “generally cluttered” and “very unclean” and
opined that Father’s apartment was not an appropriate place for children to live
“primarily because there [wa]s a very strong odor from the litter box.” Also, Perez
100
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); H.R.M., 209 S.W.3d at
108; A.B., 2010 WL 2977709, at *39.
101
See Boyd, 727 S.W.2d at 533.
54
noted that she detected the litter box odor as well as human body odor in January
2011.
We decided in our first opinion that evidence of Father’s body odor is not
evidence of endangerment under subsection (D) or (E).102 And we need not decide
whether there is a point at which the odor from a litter box becomes grounds for
termination because Perez testified that the children did not live with Father at the
time that she detected the odor. Therefore, Perez’s testimony about the condition of
Father’s apartment is not evidence that the children were exposed to harm.103
Accordingly, applying the appropriate standard of review, we hold that
evidence of the condition of Father’s homes is factually insufficient to support
termination of Father’s parental rights under subsection (D) or (E) because a
reasonable factfinder could not have formed a firm belief or conviction that the
children were present in Father’s homes when the unsanitary conditions were
reported in 2007, 2009, 2010, and 2011 or that the children were endangered by the
conditions that existed when they did live in the home in June and July 2008.104
102
See A.B., 2010 WL 2977709, at *40.
103
See Boyd, 727 S.W.2d at 533.
104
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); H.R.M., 209 S.W.3d at
108.
55
4. Other Evidence
a. Rains
The evidence shows that Rains, whom Father identified as his girlfriend and
roommate, was convicted of committing bodily injury to an elderly person after
injuring her grandmother while trying to protect her daughter. Father testified that
his children would be safe around Rains, and Perez, the only other person who
testified on this particular matter, said that she could not determine whether the
children would be safe around Rains because Perez had never seen Rains interact
with children. Without evidence that Rains would expose the children to injury,
Rains’s potential presence in Father’s apartment upon the children’s return is not
evidence of endangerment under subsection (D) or (E).105
b. Online activities
Just as Father’s involvement with adult websites did not factor into our
decision in the first case, it does not factor into our decision in this case.106 While
new evidence of Father’s online activities was introduced in the second trial, there is
no evidence, just as there was not in the first trial, that the children were exposed to
harm.107 Without evidence that the children were exposed to any danger stemming
105
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); Boyd, 727 S.W.2d at 533.
106
See A.B., 2010 WL 2977709, at *29–30.
107
See id. at *29.
56
from Father’s online activities,108 this evidence is not evidence of endangerment
under subsection (D) or (E).109
5. Conclusion
Applying the appropriate standard of review, the volume of disputed
evidence—set forth extensively above—that a reasonable factfinder could not have
credited in favor of subsection (D) or (E) findings is so significant that a factfinder
could not reasonably have formed a firm belief or conviction of the truth of the
allegations that Father violated subsection (D) or (E).110 Therefore, the evidence is
factually insufficient to support termination of Father’s parental rights under
subsection (D) or (E).111 Accordingly, we sustain the remaining portions of Father’s
first and second points.
III. Best Interest
In his third point, Father challenges the legal and factual sufficiency of the
evidence to support the jury’s finding that it was in his children’s best interest to
terminate his parental rights. Because we have concluded that the evidence is
factually insufficient to support termination under subsection (D) or (E), we need not
address whether the evidence to support the jury’s best interest finding is factually
108
See Boyd, 727 S.W.2d at 533.
109
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
110
See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28–29.
111
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
57
sufficient.112 However, because a holding of legally insufficient evidence to support
the jury’s best interest finding would entitle Father to greater relief than he is
afforded under our factual insufficiency holding, we shall address his contention that
the evidence is legally insufficient to support the jury’s best interest finding.113
Much of the same evidence that supported the best interest finding in the first
trial was also admitted into evidence during the second trial.114 Specifically, the
evidence shows that the children exhibited developmental delays, especially A.B.,
who is considered “special needs.” Additionally, the evidence questions Father’s
ability to provide minimally adequate healthcare, nutrition, and a safe physical home
environment as well as his ability to understand his children’s needs. The evidence
also shows that Rains, who may very well live in Father’s home upon the children’s
return, has a history of assaultive conduct. Additionally, the evidence shows that the
children demonstrated physical and mental improvement while they were in foster
care, that J.H. and G.H. provide the children with a safe, nurturing environment, that
the children call J.H. and G.H. “[M]ommy” and “[D]addy,” and that J.H. and G.H.
would like to adopt the children if Father’s parental rights are terminated.
112
See Tex. R. App. P. 47.1.
113
See A.B., 2010 WL 2977709, at *41.
114
See Tex. Fam. Code Ann. § 263.307(b) (West 2008); A.B., 2010 WL
2977709, at *42.
58
Therefore, viewing the evidence in the light most favorable to the judgment,
we hold, as we did in our first opinion, that the evidence is legally sufficient to
support the jury’s best interest finding.115 We overrule Father’s third point.
IV. Intervention
In his fourth point, Father claims that the trial court erred by allowing G.H. and
J.H. to intervene in the termination suit because (1) they should not have been able
to gain standing after the trial court wrongfully terminated his parental rights and (2)
intervention by foster parents violates a parent’s due process rights. As we have
previously explained,
The standard of review for determining whether the trial court
improperly denied a motion to strike intervention is abuse of discretion.
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.
In 1995, the Texas Legislature passed new laws specifically
implicating the ability of foster parents to be heard in trial court
regarding their foster children. Foster parents now have two avenues
to the courthouse. First, foster parents can bring an original suit
affecting the parent child relationship (SAPCR) if the child has lived
with the foster parents “for at least [twelve] months ending not more
than [ninety] days preceding the date of the filing of the petition.” Tex.
Fam. Code Ann. § 102.003(a)(12) (Vernon Supp.20[12]).
Second, foster parents who have not had possession of the child
for at least twelve months ninety days before they file suit may
nevertheless intervene in a SAPCR brought by someone with standing
if the foster parents can demonstrate that they have had substantial
past contact with the child. Id. at § 102.004(b).
115
See Tex. Fam. Code Ann. § 263.307(b); J.P.B., 180 S.W.3d at 573; A.B.,
2010 WL 2977709, at *42.
59
The substantial past contact test established by section
102.004(b) for foster parent intervenors was a dramatic change from
the traditional intervenor standing requirement. For several years, the
Texas Supreme Court case of Mendez v. Brewer dominated the
jurisprudence of when foster parents could intervene in termination
proceedings. In Mendez, foster parents planning on adopting the child
if parental rights were terminated sought to intervene in a termination
suit. The court looked to [former] section 11.03 of the Texas Family
Code, which . . . read: “A suit affecting the parent-child relationship may
be brought by any person with an interest in the child.” Based on this
statute, the court in Mendez established a “justiciable interest” standard
for intervenors. Applying this standard to the foster parents, the
Mendez court held that their interest was wholly contingent on the
outcome of the termination suit—an interest that was too weak to be
justiciable.
Since Mendez, however, the Texas Legislature has passed
section 102.004, which, as discussed above, creates the new, more
relaxed substantial past contact test for establishing intervenor
standing in a SAPCR. Thus, a party who cannot file a SAPCR under
the Mendez “justiciable interest” standard may nonetheless intervene in
a suit filed by a qualified party under the statutory “substantial past
contact” standard.
Sound policy supports the relaxed standing requirements. There
is a significant difference between filing a suit which could disrupt the
children’s relationship with their parents, and intervening in a pending
suit, where the relationship is already disrupted. In the latter case,
intervention may enhance the trial court’s ability to adjudicate the cause
in the best interest of the child.
Other courts have evaluated cases in which foster parents
sought to intervene in termination proceedings. In one case, a
seventeen-month-old child had lived with the foster parents for fourteen
months of her life. The foster parents had decided to adopt the child if
the mother’s parental rights were terminated. The appellate court held
that, under section 102.004, the trial court did not abuse its discretion in
allowing the foster parents to intervene in the termination suit because
the foster parents had had substantial past contact with the child.
The foster parents in this case had two avenues to be heard by
the court—either as petitioners or intervenors. N.L.G. came to the
foster parents in April 2005 and continuously remained with them
60
through the termination hearing in September 2006. Therefore, under
section 102.003(a)(12), the foster parents could have brought an
original suit affecting the parent-child relationship concerning N.L.G.
The foster parents in this case, however, chose the second
method available to them as intervenors in the suit brought by the
State. As intervenors, the foster parents had to provide the trial court
with grounds for a finding of substantial past contact with N.L.G. At the
time of the hearing on Sarah’s motion to strike, the child had lived with
the foster parents for her entire life, excluding the first seven days
following her birth. Furthermore, the foster parents had become
emotionally attached to the child and had decided to adopt her if
Sarah’s parental rights were terminated. The intervenors made the trial
court aware of these facts through their motion to intervene and the
hearing on that motion.116
Father argues that our reversal of the first termination order should somehow
cancel out all but three and a half months of the time that that the children have
been with G.H. and J.H.; that is, he argues that the trial court should not have
considered the eighteen-month period from June 8, 2009, when the first trial began,
until December 9, 2010, when G.H. and J.H. intervened, in deciding the standing
issue.
We decline to invade the province of the legislature by injecting new
requirements into the statute.117 We also reject Father’s arguments portraying this
case as a dispute between parents and foster parents and neglecting the policy of
116
In re N.L.G., 238 S.W.3d 828, 829–31 (Tex. App.—Fort Worth 2007, no
pet.) (selected citations omitted).
117
See Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 162 (Tex.
2011).
61
acting in the children’s best interest.118
Finally, Father’s argument ignores the trial court’s order in the first trial naming
TDFPS as the children’s permanent management conservator (PMC) and the
related findings that “the appointment of either parent as Managing Conservator
would not be in the best interest of the children because the appointment would
significantly impair [their] physical health or emotional development” and that the
appointment of TDFPS would be in the children’s best interest. Neither the findings
nor the designation of TDFPS as the children’s PMC was disturbed by our first
opinion.119 Because TDFPS placed the children in G.H. and J.H.’s care and left
them in that foster home after being designated their PMC, there is no taint on the
period of more than twenty one-months that G.H. and J.H. fostered the children
before intervening in the termination suit. We hold that the trial court did not abuse
its discretion by considering all the time the children have been with G.H. and J.H.
and allowing the intervention.
As to Father’s due process argument, we find our sister court in Tyler’s
analysis instructive:
[The parents] contend that [former] Chapters 11 and 15 of the
T[exas] F[amily] C[ode] violate the constitutionally protected right to
integrity of the family insofar as they allow a party other than the state
to seek the termination of the natural parents’ parental rights.
118
See N.L.G., 238 S.W.3d at 830.
119
See In re J.A.J., 243 S.W.3d 611, 612–13 (Tex. 2007).
62
The right to marry, to establish a home and bring up children is a
fundamental liberty interest protected by the fourteenth amendment.
The natural parents’ fundamental liberty interest in the care, custody
and management of their child is not lost because they have not been
model parents or have lost temporary custody of their child to the state.
A compelling governmental interest must exist in order to justify state
interference with the parent-child relationship. The appellants maintain
that there is no compelling state interest that would allow parties other
than the state to seek a termination of parental rights.
The compelling state interest at stake in parental rights
termination proceedings is a parens patriae interest in preserving and
promoting the welfare of the child. It is undoubtedly true that the
parens patriae interest favors preservation, not severance, of natural
familial bonds. Although favoring the preservation of the natural
familial bond, it does not mandate such a result where clear and
convincing proof shows that this would not be in the best interest of the
child. The determination of what is in the child’s best interest requires
a fact finding by procedures that promote an accurate determination of
whether the natural parents can and will provide an adequate and
stable home.
When a conflict arises between the individual’s protected interest
under the fourteenth amendment and the countervailing compelling
state interest, the individual is protected by the due process guarantee
of the amendment. But in a case, such as this one, in which due
process unquestionably applies, the question remains what process is
due. Due process is flexible and calls for such procedural protections
as the particular situation demands. The fundamental requirement of
due process is the opportunity to be heard “at a meaningful time and in
a meaningful manner.” “All that is necessary is that the procedures be
tailored, in light of the decision to be made, to ‘the capacities and
circumstances of those who are to be heard.’” In Mathews, the
Supreme Court set out three factors which must be considered in
identifying the specific dictates of due process.
First, the private interest that will be affected by
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
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administrative burdens that the additional or substitute
procedural requirement would entail.
In arguing that the state must show a compelling interest to allow
suits for termination by persons other than the state, the appellants
confuse the nature of the private, protected interest entitled to due
process protection with a procedural characteristic of the Texas
process. Clearly, there need not be a compelling state interest for each
detail of the process due. In our view, the provision for suits for
termination by persons “whom the court determines to have had
substantial past contact with the child sufficient to warrant standing to
do so” does nothing to diminish the appellants’ due process protection.
Many states give standing to persons other than the state to bring
termination suits. Foster parents have standing to bring such actions in
at least eight other states. Texas courts have long recognized that
parental custodial rights come within the protection of the due process
clauses of the federal and state constitutions. “In cases of this kind the
question of the fairness of the hearing is always present and has been
jealously guarded by the courts.” The state’s right to intervene to
protect dependent or neglected children was recognized long before
the advent of state supported child welfare agencies. Before the
passage of the F[amily] C[ode], under the statutes pertaining to
dependent and neglected children, private persons customarily initiated
suits to declare a child dependent and neglected. Common sense
argues that the fairness and accuracy of the fact-finding process would
be served by granting standing to those among the most intimately
concerned with the child’s welfare.
The appellants were provided counsel and interpreters, a trial of
the issues in which the burden of proof borne by their adversaries was
by a clear and convincing evidence standard. The foster parents were
required to prove not only the best interests of the child, but also the
natural parents’ misconduct. In this case, the natural parents were
extensively helped by TDHS in an attempt to improve their marginal
child rearing capabilities. The appellants’ due process rights were not
violated by the procedure provided by the T[exas] F[amily] C[ode].120
Like the birth parents in Rodarte, Father had appointed counsel and a jury trial
120
Rodarte v. Cox, 828 S.W.2d 65, 79–80 (Tex. App.—Tyler 1991, writ denied)
(citations omitted).
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in which the appellees had the burden of proving the grounds for termination by
clear and convincing evidence. We therefore likewise hold that allowing the foster
parents to intervene did not violate Father’s rights to due process.
Further, unlike Rodarte, Father has been successful on appeal. Our reversal
of this second termination order removes the foster parents as joint managing
conservators because the trial court did not make independent conservatorship
findings in this order.121 Thus, Father is in exactly the position he was in before the
intervention—TDFPS is the PMC of the children and has placed them with G.H. and
J.H. Consequently, even if the intervention had violated Father’s rights to due
process, he can show no harm. We overrule Father’s fourth issue.
V. Impeachment
In his fifth point, Father argues that the trial court erroneously denied him the
right to fully cross-examine Burdick by preventing him from impeaching her
regarding her bias against him. Specifically, Father argues that the trial court gave
the jury a false impression and violated his right to a full cross-examination by
redacting from Burdick’s report her mention of his polygraph examination and her
comment that he wasted his money by obtaining a polygraph examination. But
Father agreed to and the trial court granted a motion in limine that prohibited “[a]ny
reference to polygraph results or the taking of a polygraph examination.” He
therefore cannot now complain of the exclusion of the polygraph evidence on
121
See In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008).
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appeal.122
Accordingly, we overrule Father’s fifth point.
VI. Conclusion
Having determined that the evidence is factually insufficient to terminate
Father’s parental rights under subsections (D) and (E) of section 161.001(1) of the
family code and having overruled his other points, we reverse the trial court’s
judgment and remand the case to the trial court for a new trial.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
MCCOY, J., dissents without opinion.
DELIVERED: September 13, 2012
122
See In re A.S.Z., No. 02-07-00259-CV, 2008 WL 3540251, at *2 (Tex.
App.—Fort Worth Aug. 14, 2008, no pet.) (mem. op.); McLendon v. McLendon, 847
S.W.2d 601, 609 (Tex. App.—Dallas 1992, writ denied) (holding that because father
agreed to the omission of specific periods of possession, he cannot complain on
appeal that the failure to grant him specific terms is reversible error).
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