in the Interest of M.A.P., Minor Child ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00484-CV
IN THE INTEREST OF M.A.P.,
MINOR CHILD
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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
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MEMORANDUM OPINION1
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Appellants R.P., Jr. (Father) and C.H.G. (Mother) appeal the trial court’s
order terminating their parental rights to their son, M.A.P. (Maurice). 2 Appellants
argue that the evidence is legally and factually insufficient to support the jury’s
verdict of termination and that the order of termination violates substantive due
process. We affirm.3
1
See Tex. R. App. P. 47.4.
2
We will use “Maurice” as an alias to refer to M.A.P. throughout this
opinion. See Tex. R. App. P. 9.8(b)(2).
3
We note that the briefs filed by the counsel for both parents contain
language that is distracting and inappropriate. Appellate attorneys have an
“obligation to treat with consideration all persons involved in the legal process
Background Facts
According to Father, in 1984, he was born addicted to marijuana because
his mother used it while she was pregnant. Father was sexually abused while he
was a child in California; his parents were “never married and could not stand
each other.” When Father was nine years old, he was diagnosed as paranoid
schizophrenic, and he learned about that condition when he was fourteen years
old. He has been taking various medications for his schizophrenia for many
years, but the medications have not eliminated the symptoms of his mental
illness. From 2008 until the spring of 2010, Father did not take medication.
Sometimes as a result of his mental illness, Father has had auditory and visual
hallucinations.
Mother was born in 1987 and was diagnosed as schizophrenic when she
was approximately eighteen years old. Twice in 2005, she went to a state
and to avoid the infliction of harm on the appellate process, the courts, and the
law itself.” Texas Supreme Court, Standards for Appellate Conduct, available at
http://www.supreme/rules/conduct.asp. Attorneys must also “serve the Court by
respecting and maintaining the dignity and integrity of the appellate process.”
See id. The briefs that the parents’ attorneys submitted fail to meet these
standards. As examples of this failure, Mother’s brief insults this court as being
“closeted . . . from the facts of life lived on the ground by the common citizens.”
Father’s brief refers to Father and Mother as “morons,” labels voluntary court-
appointed child advocates as “ventriloquist dummies,” characterizes employees
of the Department of Family and Protective Services (the Department) as “soi-
disant saints,” and states that parents who are typically involved in CPS cases
are “run-of-the-mill scum” and “degenerate dregs.” Both briefs also contain
language expressing personal opinions or interests of the attorneys that have
little relation to the law or facts of this case. Counsel should be careful to comply
with all applicable appellate standards and to act with proper decorum in future
representation of clients before this court.
2
hospital. First, in October 2005, on a day that she had been drinking alcohol and
smoking marijuana, Mother went to the state hospital because she was “out of
control,” was crying incessantly, and was hallucinating. Mother continued to act
erratically at the state hospital; for example, she paced hallways with her hands
clinched in a fist while punching into the air and coming close to hitting patients
and the hospital’s employees. She stayed at the state hospital awhile, was
discharged, stopped taking her medication, and returned around Christmas of
2005. Reports from her second trip to the state hospital recite that before her
admission, she was running into a street, her mother called the police, and when
Mother was taken to the state hospital, she was “belligerent, threatening[,] and
very agitated.” When Mother was discharged from the state hospital the second
time, after a couple of months, she stopped taking her medication again, and she
did not take it from 2006 through 2009. She began taking medication again
sometime between January and September 2010, and she took it from then
through the jury trial in November 2011. Mother completed high school and has
taken some college courses. Her father has been confined for committing a
sexual crime.
Father and Mother, who have never been formally married (although
Father sometimes referred to Mother as his common law wife), met each other in
2007 at Faith Mission, a homeless shelter. They smoked marijuana together and
had sex on the day that they met each other. They soon moved in together, and
3
shortly thereafter, Father began to physically abuse Mother; specifically, he
scratched her and wrestled her.4
In March 2008, Mother learned that she was pregnant with Maurice.
Mother had a normal pregnancy, and she attended all scheduled prenatal visits
with her doctor. During the pregnancy, Father went to a “little dad’s class” and
“came directly on home with boxes of diapers.” Mother testified that she did not
smoke marijuana or drink alcohol while she was pregnant.
Maurice, who is Father’s and Mother’s only child, was born in Wichita Falls
in October 2008, the same month that Mother and Father moved together into
Indian Falls Apartments (Indian Falls), where they received housing assistance.
A document entered into evidence reflects that during part of the time that Mother
and Father lived at Indian Falls, the apartment needed various repairs to address
dangerous conditions (for example, the City of Wichita Falls required that rusted
stovetop drip pans be replaced to prevent a fire).
On the day of Maurice’s birth, although Father was taking medication, he
threatened to kill a doctor and to “shoot everyone” if anything negative happened
to Maurice while Mother was birthing him. Father testified that he also
threatened the doctor because the doctor made fun of Los Angeles. Father said
to the doctor, “I would like to see you in a pool of blood.” But Father testified that
he was “overjoyed” upon Maurice’s birth and wanted to provide for his needs.
4
Mother and Father eventually lived together at three addresses.
4
After the hospital discharged Mother and Maurice, Father and Mother took
Maurice home, but because of Father’s threat at the hospital, Child Protective
Services (CPS) visited Maurice. CPS representatives found Maurice to be clean
and healthy. Among other topics, the representatives talked to Father about
controlling his temper. CPS did not remove Maurice from his parents’ custody at
that time; instead, CPS representatives periodically visited Mother and Father,
and the parents worked on family-based safety services (including parenting
classes) until April 2009, when CPS stopped interacting with the parents. Near
that time, while Maurice was in a room away from Mother and Father, they had a
dispute in which Father grabbed Mother’s neck, choked her, punched her in the
mouth with a closed fist, and caused her lip to bleed.5 Pursuant to his guilty plea,
Father was later convicted of assaulting Mother. Mother and Father also smoked
marijuana together in the months after Maurice’s birth. Nonetheless, according
to Mother, Maurice was healthy, happy, and progressed normally during that
time.
In August 2009, authorities received a domestic disturbance call
concerning Mother and Father, and CPS visited them again. Also in that month,
Mother took Maurice to an emergency room demanding that he be examined
because she believed that Father had molested him. The hospital refused to
5
Mother testified that over the course of her relationship with Father, he
choked her between one and three times, punched her at least once, and shoved
her into a wall once.
5
perform a sexual abuse test, and Mother returned home. Although Mother
continued to believe that Father had molested Maurice, Father resumed living
with Mother and Maurice. Mother and Father continued to use drugs together.
One day in September 2009, Father and Mother began an argument near
an alley. During the argument, while Mother had put Maurice, who was in his car
seat, on a ledge to change his diaper, Maurice, according to Father, almost fell.
Mother and Father had both been smoking marijuana around Maurice that day.
When the police responded to the argument, Mother again said that Father had
molested Maurice. Mother appeared to the police to be confused and
disoriented. The police took her to the state hospital, and Father took Maurice to
stay at Father’s “church family’s house.” Mother eventually went from the state
hospital to a crisis respite unit, and when Father and Maurice visited her there,
she became angry and again accused Father of molesting Maurice.6 Father and
Maurice were escorted out. After a few days, Mother left the crisis respite unit,
and she continued to accuse father of molesting Maurice. On the same day that
Mother was reunited with Maurice, CPS removed him from her care, and it soon
6
At trial, Mother indicated that her belief that Father was molesting Maurice
was based upon her opinion that Father had sex with a gay man (although
Father denied doing so), that Father had once said that he had molested his
sister, and that Maurice’s “bottom was always directly sitting on” the area of
Father’s penis when Father held him. Mother first testified that she did not still
believe that Father had molested Maurice, but she later said that she did still
believe that Father had molested him. Thereafter, during questioning from her
counsel, Mother seemed to attribute her belief about the alleged molestation to
her schizophrenia. At trial, Father testified that he had never molested Maurice
and that Mother was delusional to say so. CPS ruled out any molestation.
6
placed him in a foster home. Father has described the day that CPS first
removed Maurice as the “worst day of [his] life.”
Near the time of Maurice’s removal, the Department filed a petition that
sought termination of the parents’ rights to Maurice if reunification could not be
achieved. An associate judge gave temporary conservatorship of Maurice to the
Department and appointed an attorney ad litem and a guardian ad litem for him.
Several days after Maurice’s removal, CPS provided a family service plan to
Mother and Father. The service plan required the parents to participate in
counseling and to follow all recommendations made there, take a psychological
evaluation and parenting classes, maintain a safe and stable home, submit to
random drug screens, participate in Narcotics Anonymous (NA) meetings “at
least twice a week,” and comply with all court orders. The associate judge
ordered the parents to comply with each requirement of the service plan.
According to Father, when CPS first removed Maurice in September 2009,
Maurice was happy, healthy, and intelligent. Mother and Father visited Maurice
twice per week, and Mother testified that at the end of visitation, Maurice
screamed because he did not want her to leave. Mother testified that near the
time of Maurice’s first removal, she wanted to stay apart from Father, but a CPS
caseworker encouraged her to stay with him. Mother and Father took parenting
classes together from September 2009 through January 2010.
Father began counseling in September 2009 with Cheryl Polly. Polly’s
reports from Father’s counseling reflect frustration and stress that his relationship
7
with Mother caused him; Polly’s final report from the counseling provided in
December 2009 states,
[Father] has satisfied the number of counseling session[s]
required on his family plan. It appears that he loves his child and
has some insight into what is necessary to take care of this child.
However, his unstable relationship with the child’s mother and the
resulting confusion and exacerbation of his mental disorder . . . may
hinder his ability to provide for the well-being of the child.
Father also took his psychological evaluation in October 2009 from Dr. David
Sabine. Dr. Sabine’s report from the evaluation states, among other facts, that
Father had been hospitalized eight or nine times for psychiatric reasons, that he
was paranoid and evasive during the evaluation, that his IQ is in the intellectually
deficient range, and that it was going to be “difficult for [him] to parent effectively
given the disabling nature of his mental illness.”
Mother began counseling with John Salkeld in October 2009. When
Mother met with Salkeld, she said that she and Father had been involved in
“numerous verbal, as well as physical altercations.” Mother told Salkeld that
although she had contacted the Wichita Falls Police Department about Father’s
alleged sexual abuse of Maurice, she had continued to reside with Father.
Salkeld’s conversations with Mother revealed that she began smoking marijuana
when she was sixteen years old and that she still smoked it, including sometimes
around Maurice. In October 2009, Salkeld and Mother spent a “great deal of
time discussing how a child’s formative years have a great impact on the child as
they grow up,” and they discussed “in detail how it is not in [Mother’s] benefit or
8
[Maurice’s] benefit for her to reside in the same location as [Father].” Salkeld
noted in some of his later reports concerning Mother that she was attending
many NA meetings. In a November 2009 report, Salkeld said that Mother had a
“fair to good potential for good recovery” from her drug abuse issues.
In December 2009, however, Salkeld reported that Mother was “making little
effort to obtain ongoing recovery.” Later in December, Salkeld wrote that Mother
was having “difficulty accepting that marijuana was a big problem for her.”
In January 2010, Salkeld expressed his belief that Mother had “very little insight
concerning the serious difficulty that she . . . brought upon herself.”
In March 2010, during a dispute between Father and Mother at Indian
Falls, he grabbed her throat with both hands, causing her to have difficulty
breathing, and he also pulled her hair. The police arrested Father for assaulting
Mother. Diane Crow, who works for Indian Falls, wrote a letter to an employee of
the City of Wichita Falls that stated in part,
[T]here was a family disturbance at [the apartment] on Wednesday,
March 3, 2010. [Father] was upset about the hearing regarding
getting back their son. He had been given two [drug] tests and both
came back positive so the hearing was postponed . . . . He pushed
and grabbed [Mother] around the neck as well as leaving other
marks on her. He was arrested for family violence . . . . She
requested the locks changed . . . .
After a permanency hearing in August 2010, CPS transferred possession
of Maurice from the foster home back to Mother on a monitored return.7 Upon
7
See Tex. Fam. Code Ann. § 263.403 (West 2008).
9
being returned to Mother, Maurice stayed in day care while Mother worked on
weekends and went to school on weekdays. Linda Boyd, the court-appointed
special advocate (CASA) assigned to Maurice’s case, who was also Maurice’s
guardian ad litem, helped Mother enroll Maurice in the day care. The monitored
return appeared to Desiree Bernal, the CPS caseworker who was assigned to
Maurice’s case in August 2010, to be progressing well. The conditions of the
return required Mother to notify CPS if she moved, to not use drugs, to not let
Father stay in her home, to not stay in Father’s home, to not allow unsupervised
visitation between Father and Maurice, and to allow a caseworker to check on
her and Maurice periodically. CPS allowed Mother to supervise visits between
Father and Maurice but only in public places.
Despite the conditions of the monitored return and despite Mother’s
continued belief that Father had sexually abused Maurice, in the latter part of
2010, Father sometimes slept at Mother’s residence. Around that time, Father
also sometimes slept in a park. One day in the park, he became suicidal and told
police officers that he was going to cut himself. The officers took him to a state
hospital, and then he went to a crisis respite unit. In October 2010, a police
officer arrested Father for possession of marijuana, a crime for which Father was
later convicted.
One night in November 2010, three months after the monitored return had
begun, Father came to Mother’s apartment before 7 p.m., and according to
Mother, she, Father, and Maurice listened to music before she gave Maurice a
10
bath and took Maurice to her room to rest. Father remained in a different room
until about 1 a.m. At that time, she told Father to leave, but he said that he did
not have anywhere to go. Father, Mother, and Maurice began to drive around in
Mother’s car. Mother testified that they began driving with the intent of taking
Father home but that Father then decided that he did not want to go home.
According to Father, Mother drove the car for about an hour, and then Father
drove because Mother had taken medication, and Father believed that it was
unsafe for Mother to continue driving.8 After Father had started driving, a tire
exploded. Father did not have a valid driver’s license at the time; in fact, he has
not had a driver’s license since he moved to Texas from California when he was
twenty-one years old. And when Father resided in California, his driver’s license
was suspended because he had stolen a car.
Although Father testified that he, Mother, and Maurice had been traveling
in the car for two hours when the tire exploded, he said that he did not remember
where they were going. Father said that when the tire exploded, Maurice was
not properly buckled into a car seat, but Mother testified that Maurice was
properly buckled. When the explosion occurred, Father pulled over to change
the tire, and a police car pulled behind him. According to Father, the police
started to interrogate him. Father admitted to possessing marijuana, said that he
8
At trial, Father testified that Mother had endangered Maurice by driving
after she had taken medication. Mother testified that she did not drive erratically
that night. A sheriff’s deputy reported that Mother appeared lethargic and
incoherent, as if she was under the influence of drugs.
11
did not want to go to jail, and ran away. The police arrested Mother for driving
while intoxicated, and because no one at the scene could care for Maurice, he
returned to CPS’s care and was eventually placed back in the foster home where
he had stayed prior to the monitored return. When Maurice returned to his foster
home, he was, according to Boyd, a “different child” compared to when he had
stayed there before the monitored return; for example, his sleep was erratic, bath
time was “very frightening” for him, and he did not relate well to other children in
the home.
Mother spent a few days in jail after her arrest, but she was not convicted
for a crime in connection with it. Boyd visited Mother in jail on the morning of the
arrest, and to Boyd, Mother seemed “very, very dazed.” According to Boyd,
Mother said that she was on drugs and that she and Father had been to a club
on the previous night. Because Father had left a form of identification, the police
were able to find him later that morning at Indian Falls, although he had already
been barred from there because of his abuse of Mother. Father ran from the
police again at Indian Falls, but they caught him and arrested him; he was
eventually convicted of two counts of evading arrest. Father recognized that his
presence at Indian Falls risked Mother’s and Maurice’s being kicked out of
Mother’s apartment.
Like Boyd, Bernal also visited Mother in jail, and Mother told Bernal that
she had not been taking her medication. According to Bernal, when the
monitored return was disrupted, CPS gave Mother “60 days to get back on her
12
meds and stabilize.” Mother was ordered to continue working on her service
plan, but although CPS would have paid for Mother to continue counseling, she
failed to do so. Mother also did not go to all of the NA meetings that CPS had
advised her to attend after Maurice’s second removal. In December 2010,
another employee of Indian Falls wrote a letter to the city stating,
We at Indian Falls believe that [Mother] . . . has an
unauthorized occupant living in her apartment. We have witnessed
[Father] coming and going from her apartment daily, even though he
has been barred from this property. We have had him arrested on
one occasion and the police had to chase him through the
community in order to detain him.
After Maurice returned to the foster home, the associate judge entered an
order in which she found that Mother was not able to provide Maurice with a safe
environment, and the judge ordered Mother to restart her “mental health
treatment and medications immediately.” Mother and Father began visiting
Maurice together again, and Mother believed that Maurice was confused about
what was happening. At some later point, the trial court ordered that Father and
Mother visit Maurice separately. In January 2011, after Mother had been riding
in a car with Father, she was arrested for possessing marijuana in her shoe and
in her pocket; she later pled guilty for that offense and was placed on deferred
adjudication community supervision. Mother and Father signed a lease and
began to live with each other again in early 2011.
Father physically abused Mother in March 2011, and she went to First
Step, a women’s shelter. Mother testified that she “parted ways” with Father that
13
month and that she had no contact with him after March 28, 2011. But in April
2011, according to Bernal, Mother and Father admitted to her that they were still
living together but were telling people that they were not a couple “so that
[Mother] could get [Maurice] back.” Also, Brooke McLemore, a case supervisor
with CASA, testified that although Mother had told her in March 2011 that her
relationship with Father was over, on April 1, 2011, McLemore saw Mother and
Father holding hands while walking together.
Also in April 2011, while Mother was “catching a bus,” she met a man
known as “Cali,” whose real name is Marcus Jackson. Mother denied dating Cali
and described him as a “male associate,” but she admitted that she had sex with
him. Cali appeared to Mother to be homeless. One night just a couple of months
before the jury trial, after Mother had let Cali stay in her apartment (although she
claimed to have not known him well and to have not trusted him), he stole
Mother’s car.9 During part of the summer of 2011, Father stayed at Faith
Mission, the homeless shelter, but he was eventually barred from remaining
there because of a threatening note that the shelter attributed to him.
9
It is clear that Mother lied during part of her testimony about Cali. Mother
initially testified that she did not know Cali’s real name and that Cali had never
been to her home. She later admitted that she knew that Cali’s real name was
Marcus Jackson, and she conceded that he had been to her home.
14
The jury trial of the Department’s termination petition occurred in
November 2011, when Maurice was three years old.10 Father did not appear for
voir dire of the jury panel on the first day of the trial; he said later that he had
gone to see a doctor because he had strep throat. He was also not present for
other parts of the trial, and during the middle of the trial, based on a conversation
that a sheriff’s deputy had with him, the deputy took him to the crisis respite unit.
At the end of the trial, the jury terminated both parents’ rights to Maurice. The
trial court entered an order of termination on the grounds described in the jury
charge. The parents brought this appeal.
Legal and Factual Sufficiency
Mother and Father challenge various aspects of the jury’s termination
verdict on grounds of evidentiary sufficiency. In accordance with the jury’s
implicit findings included within the broad-form verdict of termination, the trial
court found in its termination order that each parent had knowingly placed or
knowingly allowed Maurice to remain in conditions or surroundings that
10
The associate judge presided over a trial on the termination issue in May
2011. After the trial concluded, and after the statutory dismissal date had
passed, the judge ordered a second monitored return of Maurice to Mother. We
held that this order was an abuse of discretion, and we therefore conditionally
granted a writ of mandamus. See In re Tex. Dep’t of Family & Protective Servs.,
348 S.W.3d 492, 494, 498 (Tex. App.—Fort Worth 2011, orig. proceeding). After
our decision, the associate judge, based on the evidence presented in the May
2011 bench trial, decided to return Maurice to Mother, name her as Maurice’s
managing conservator, and designate Father as Maurice’s possessory
conservator. The Department obtained a jury trial de novo in the county court at
law. See Tex. Fam. Code Ann. § 201.015 (West Supp. 2011).
15
endangered his physical or emotional well-being, each parent had engaged in
conduct or had knowingly placed Maurice with persons who engaged in conduct
that endangered his physical or emotional well-being, and termination of the
parents’ rights is in Maurice’s best interest.
Standard of review and applicable law
A parent’s rights to “the companionship, care, custody, and management”
of his or her children are constitutional interests “far more precious than any
property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings in favor of the parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294
S.W.3d 213, 233 (Tex. App.—Fort Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
16
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2011); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Termination decisions must be
supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001.
Evidence is clear and convincing if it “will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be
established.” Id. § 101.007 (West 2008). Due process demands this heightened
standard because termination results in permanent, irrevocable changes for the
parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
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. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id. We cannot weigh witness credibility issues
that depend on the appearance and demeanor of the witnesses, for that is the
factfinder’s province. Id. at 573–74. And even when credibility issues appear in
17
the appellate record, we defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the jury’s verdict with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); see also In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003) (explaining that in a termination case, an appellate court should
not reweigh disputed evidence or evidence that depends on witnesses’
credibility), cert. denied, 541 U.S. 1043 (2004). We determine whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief of the
grounds for termination. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28.
If, in light of the entire record, the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction in the truth of its
finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
Mother’s endangerment of Maurice
In Mother’s first two issues, she argues that the evidence is legally and
factually insufficient to sustain the grounds for termination under section
161.001(1)(D) and (E) of the family code. See Tex. Fam. Code Ann.
§ 161.001(1)(D), (E). Under subsection (E), termination may be supported by a
finding that a parent engaged in conduct or knowingly placed the child with
persons who engaged in conduct that endangered the physical or emotional well-
being of the child. Id. § 161.001(1)(E).
18
As we have recently explained,
Endangerment means to expose to loss or injury, to
jeopardize. Under section 161.001(1)(E), the relevant inquiry is
whether evidence exists that the endangerment of the child’s . . .
well-being was the direct result of [the parent’s] conduct, including
acts, omissions, or failures to act. 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. It is not necessary, however, that the
parent’s conduct be directed at the child or that the child actually
suffer injury. The specific danger to the child’s well-being may be
inferred from parental misconduct standing alone. Moreover, a
parent’s mental state may be considered in determining whether a
child is endangered if that mental state allows the parent to engage
in conduct that jeopardizes the physical or emotional well-being of
the child. To determine whether termination is necessary, courts
may look to parental conduct occurring both before and after the
child’s birth.
In re M.E.-M.N., 342 S.W.3d 254, 261–62 (Tex. App.—Fort Worth 2011, pet.
denied) (emphasis added) (citations omitted).
The evidence disclosed a pattern of Mother’s conduct by which the jury
could have reasonably formed a firm belief or conviction that she had
endangered Maurice’s physical or emotional well-being. For example, Mother’s
and Father’s testimony established that Mother had used marijuana around
Maurice during his infancy, before his initial removal from her custody. In fact,
according to Father, Mother had been using marijuana near the time in
September 2009 when she walked away from Maurice, who was less than a year
old, while his car seat was perched on a ledge. Father testified that during that
incident, Maurice almost fell, and Father therefore opined that Mother had
endangered Maurice’s physical safety. Father said that although he had tried to
19
reach Maurice on the ledge, Mother had blocked him from doing so. Although
Mother testified that Maurice was never in danger of falling off the ledge, the jury
had the discretion to believe Father and to disbelieve Mother, whose credibility
was impaired by the fact that she lied during her testimony. See In re R.W., 129
S.W.3d 732, 742–43 (Tex. App.—Fort Worth 2004, pet. denied). Thus, the jury
could have found that Mother had endangered Maurice’s physical well-being by
leaving him on the ledge. See Tex. Fam. Code Ann. § 161.001(1)(E).
Bernal testified that parents’ drug use may impair their judgment,
resulting in harm to the child. Mother agreed that using drugs around a child
endangers the child. Thus, the jury could have also considered Mother’s drug
use before Maurice’s initial removal as a factor supporting termination under the
standard of section 161.001(1)(E). See In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009) (“[A] parent’s use of narcotics . . . may qualify as an endangering course of
conduct.”); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet.
denied). Mother continued to possess and use marijuana after the Department
became involved in Maurice’s life, when she knew that doing so exacerbated her
schizophrenia and risked the chances of her reunification with Maurice. Also,
Father testified that during the time of the monitored return, Mother had allowed
him to use marijuana around her and Maurice. We have held that a “parent’s
decision to engage in illegal drug use during the pendency of a termination suit,
when the parent is at risk of losing a child, supports a finding that the parent
engaged in conduct that endangered the child’s physical or emotional well-
20
being.” In re J.A.G., No. 02-10-00002-CV, 2010 WL 4539442, at *1 (Tex. App.—
Fort Worth Nov. 10, 2010, no pet.) (mem. op.).
Next, at least until March 2011, Mother continued to associate with Father
despite his repeated violence toward her, including some incidents that occurred
in front of Maurice. Mother acknowledged at trial that Maurice had likely heard
the sounds associated with her pain and Father’s anger. She agreed that
children who are subjected to domestic violence in the home are endangered,
and she said that she had learned from parenting classes that a single-parent
home without domestic violence is better than a two-parent home where such
violence occurs. She also admitted that a child’s seeing domestic violence within
the child’s home can irreparably harm the child and that she had failed to protect
Maurice from that type of harm. Therefore, although we recognize that under the
evidence presented at trial, Father has the greatest culpability for the violence
itself, we conclude that the jury could have reasonably determined that Mother’s
failure to remove herself and Maurice from the violence endangered his physical
or emotional well-being. See In re M.R., 243 S.W.3d 807, 818–19 (Tex. App.—
Fort Worth 2007, no pet.) (considering the fact that a mother “exposed her
children to domestic violence,” including an incident where the mother was
“smacked” in front of her child, as evidence of endangerment under subsection
(E)); In re D.C., 128 S.W.3d 707, 715 (Tex. App—Fort Worth 2004, no pet.)
(explaining that “[a]busive or violent conduct by a parent or other resident of a
child’s home may produce an environment that endangers the physical or
21
emotional well-being of a child”); see also Sylvia M. v. Dallas Cnty. Welfare Unit,
771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ) (considering, as
evidence supporting termination, a mother’s reconciliation with her abusive
spouse).
Also, the jury could have reasonably found that the November 2010 early-
morning driving incident endangered Maurice in two ways. First, according to
Father’s account of that incident, before the tire exploded, Mother was swerving,
which endangered herself, Father, and Maurice. Father testified that Maurice
was not properly buckled into his car seat while they were driving. Cf. In re
M.J.F., No. 06-05-00113-CV, 2006 WL 2522200, at *11 (Tex. App.—Texarkana
Sept. 1, 2006, no pet.) (mem. op.) (considering a parent’s decision to drive a
child while the parent was intoxicated and without putting the child in a properly
adjusted car seat as factors supporting termination under section 161.001(1)(E)).
Second, the parents’ conduct related to that incident precipitated the end of the
monitored return and the return of Maurice to his foster home. Thus, the jury
could have reasonably found that Mother’s conduct on the night of the incident
caused instability to Maurice; Mother admitted this fact during her testimony.
See S.D., 980 S.W.2d at 763 (explaining that conduct that subjects a child to a
life of uncertainty and instability endangers the physical and emotional well-being
of the child).
The evidence also showed that for part of the time that Mother possessed
Maurice, she did not take the medication that was prescribed for her
22
schizophrenia. Based on the evidence concerning the kinds of actions that
Mother engaged in as far back as 2005 when she did not take her medication,
some of which we have described above, the jury could have concluded that
Mother’s failure to take it after giving birth to Maurice endangered him. See In re
K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet. denied) (“[T]he
trial court could have chosen to believe that Mother’s . . . failure to . . . take steps
to treat her mental health issues demonstrated an inability to provide [the child]
with a safe environment.”).
Under the standards of review set forth above, we conclude that these
facts, among others, could have enabled the jury to reasonably form a firm
conviction or belief that Mother had engaged in conduct or knowingly placed
Maurice with persons who engaged in conduct that endangered his physical or
emotional well-being. We disagree with Mother’s counsel’s inflammatory
contention that the “Department’s allegations . . . are the product of the fevered
imagination of the professional hysterics of the Department.” We therefore hold
that the evidence is legally and factually sufficient to sustain the jury’s termination
verdict against Mother to the extent that the verdict rests on the ground for
termination described by section 161.001(1)(E), and we overrule Mother’s
second issue. See Tex. Fam. Code Ann. § 161.001(1)(E). Because one finding
under section 161.001(1), along with a finding that termination is in the child’s
best interest, is sufficient to sustain an order of termination, we decline to
address Mother’s first issue, which challenges the sufficiency of the evidence to
23
prove the ground for termination under section 161.001(1)(D). See Tex. R. App.
P. 47.1; In re Z.C., 280 S.W.3d 470, 475 n.22 (Tex. App.—Fort Worth 2009, pet.
denied).
The best interest of Maurice
In Mother’s third issue and in Father’s second issue, they argue that the
evidence is legally and factually insufficient to prove that termination of their
parental rights is in Maurice’s best interest. See Tex. Fam. Code Ann.
§ 161.001(2). There is a strong presumption that keeping a child with a parent is
in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt
and permanent placement of the child in a safe environment is also presumed to
be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include the desires of the child, the
emotional and physical needs of the child now and in the future, the emotional
and physical danger to the child now and in the future, the parental abilities of the
individuals seeking custody, the programs available to assist these individuals to
promote the best interest of the child, the plans for the child by these individuals
or by the agency seeking custody, the stability of the home or proposed
placement, the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one, and any excuse for the acts
or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
24
1976) (citations omitted). These factors are not exhaustive, and some listed
factors may be inapplicable to some cases. C.H., 89 S.W.3d at 27.
A factfinder may consider a parent’s continuing use of illegal drugs as a
factor affecting the best interest of a child. See M.R., 243 S.W.3d at 820; In re
S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). Exposure of a
child to domestic violence is also a relevant factor in discerning the child’s best
interest. See R.R., 294 S.W.3d at 235; M.R., 243 S.W.3d at 820. While mental
incompetence or mental illness alone are not grounds for termination of the
parent-child relationship, when a parent’s mental state allows the parent to
engage in conduct that endangers the physical or emotional well-being of the
child, “that conduct has bearing on the advisability of terminating the parent’s
rights.” In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ).
A parent’s noncompliance with a service plan may also affect a factfinder’s
consideration of the child’s best interest. M.R., 243 S.W.3d at 821; see also In re
K.S., No. 02-09-00331-CV, 2010 WL 2432012, at *8 (Tex. App.—Fort Worth
June 17, 2010, no pet.) (mem. op.) (noting that a mother had been “unwilling to
cooperate with CPS and undertake the services that would return [the child] to
her”). Finally, a parent’s extensive criminal record reflects on the best interest of
the child in maintaining a relationship with that parent. See In re V.V., 349
S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc).
25
Maurice’s desire, the parental abilities of the individuals seeking
custody, the plans for Maurice by those individuals, and the stability
of the home or proposed placement
Maurice did not testify about his desire to continue or terminate his
relationship with his parents. Father testified that he had attended every visit
with Maurice, described the visits as “special,” and said that he loves Maurice
with all of his heart. But Boyd testified that during the parents’ visits with Maurice
after the monitored return ended, Maurice would sometimes scream, cry, and
have to be comforted by CPS workers, who were strangers to him, because he
wanted to get away from Mother and Father. Boyd said that she had watched
approximately fifteen visits between Maurice and his parents. She explained that
there was “not much warmth” between Maurice and Mother and that Mother
seemed to be “preoccupied” and “detached from the situation at times.”
Specifically, Boyd testified that during the visits, Mother would send text
messages on her cell phone, which diverted her attention away from Maurice.
Although Boyd, who is a retired teacher of young children, attempted to model
behaviors for Mother during the visits such as singing songs or reading books to
Maurice, according to Boyd, Mother said that she did not want to do these things
because Maurice would “want [her] to do it all the time, and [she did not] have
time for that.” Boyd said that Father was more involved with Maurice in the visits
and played with him.
Mother knew what Maurice needed nutritionally. Bernal testified that
during Mother’s visits with Maurice, she sometimes brought him snacks, sang to
26
him, and played with him. But Bernal testified that Mother did not “redirect
[Maurice] well” and had difficulty consoling him. Thus, Bernal believed that at
least in part, Mother had not applied what she had learned in parenting classes
and had therefore violated the service plan. Like Boyd, Bernal also testified that
Maurice’s visits with the parents in 2011 often did not go well. She explained,
[W]hen [Maurice] comes to the visits, he’s generally -- probably 85
percent of the time, he’s upset. He doesn’t want to be there. He
sometimes doesn’t want to go to [Mother], and it makes it difficult for
those visitations to start out happy and go. It takes time to get him
calmed down to visit with her.
Bernal also said that Mother could not comfort Maurice when he became upset.
Boyd said that when she met with Mother at times when Maurice was outside of
Mother’s custody, Mother never asked her how Maurice was doing.
In contrast, Maurice was “thriving” in his foster home at the time of the trial.
Maurice had lived in that home from December 2009 until August 2010, when
CPS gave Maurice to Mother on the monitored return, and from November 2010
until the trial in November 2011. In other words, Maurice had lived in the foster
home for twenty of the twenty-three months preceding the trial. He did not have
learning disabilities, and he was developing normally except for a speech delay,
for which he was receiving therapy. He had bonded with the people in his foster
home. Maurice’s foster family wanted to adopt him, and CPS shared that goal.
Although Mother and Father had submitted names of people to be considered for
placement, Bernal testified that for various reasons, those people could not
appropriately care for Maurice.
27
The foster home where Maurice was living was neat and clean. Maurice’s
foster mother owns a day care that had a “happy bunch of kids” and was well
organized. When Boyd was asked why it would not be in Maurice’s best interest
to remain in the foster home but allow the parents to continue to visit him, she
said,
You know, [Maurice] is three years old. He has been . . . under CPS
care all but about four months of his life. He’s been pulled and
tugged between visitations. Some visitations have been mild. Some
visitations have been heated. . . . He has been having many -- he
cries a lot or it’s just not a happy child. [Maurice] deserves some
stability in his life, and he has it where he is. And he also has a
great support system. And he is thriving.
Father testified that he preferred Maurice to live with Mother without any
intervention from the Department, and he believed that Mother, whom he testified
that he had not seen in several months preceding the trial, would be a good
parent to Maurice. Father admitted, however, that he hoped to reunite with
Mother because he still loves her. Mother testified that she did not want to be
with Father, and she recognized that her relationship with him was “unhealthy.”
At the time of the trial, however, Mother and Father still lived within walking
distance of each other. And as we explained above, although Mother testified
that she had no contact with Father after March 28, 2011, other evidence
contradicts that claim.
Records from Mother’s parenting classes in August 2010, during the
monitored return, indicate that Mother and Maurice had a bond at that time.
Mother said that if the jury would permit Maurice to live with her again, she would
28
stay away from Father, enroll Maurice in “some type of school,” and allow a third
party to supervise visits with Father as long as Father’s rights to Maurice were
not terminated. But Mother said that if the jury terminated Father’s rights and
allowed Maurice to live with her, she would not allow Father to be involved in
Maurice’s life. Mother said that she loved Maurice, wanted what was best for
him, and believed that it was not in his best interest for her rights to be
terminated. Although Mother described Father at trial as a “great father” and said
that she did not want his rights to Maurice to be terminated, she conceded that a
great father does not abuse his child’s mother or smoke marijuana around his
child.
During questioning of Mother by Maurice’s attorney ad litem about
Mother’s plans for Maurice, the following exchange occurred:
Q Do you think that if [Maurice] were to be returned to you,
you would suddenly turn over a new leaf and start living your entire
life completely differently and never make the same mistakes that
you’ve been making?
A I sure hope so.
Q But you can’t tell this jury for a fact that you will, can you?
A I’m not a fortune reader. Only thing I can say is live and
learn.
When Bernal was asked what she believed would happen if the jury decided to
return Maurice to Mother, she said, “[H]e could get hurt, but maybe have some
emotional issues that, you know, come along with the fighting and the drug use.
And I believe he’ll probably end up back in CPS care.”
29
Father, who has been on social security “[a]ll [his] life” and receives $606
per month from it, said that for a couple of weeks preceding the trial, he had
worked for a temp agency that sent him to do janitorial work at schools. 11 In
those two weeks, he made about $200. During the course of the Department’s
case, Father also painted houses and worked at Popeye’s, but he testified that
he left the job at Popeye’s because he was being treated unfairly. Father also
once worked for the City of Wichita Falls, but he lost that job because he had
failed a drug test. At the time of the trial, Father was receiving free medication
from MHMR and Medicaid, and he also received $200 per month in food stamps.
Father’s goal was to “get off Social Security.” Although Father said that he had
saved more than $300 in a coffee can, he admitted that he was behind on his
rent and that he owed money to a bail bondsman.
In the eleven months immediately preceding the trial, Mother had lived at
five different addresses. At the time of the trial, she had been working for
McDonald’s as a cashier for over six months. She was working forty hours per
week and making $7.25 per hour. She also received social security because of
her mental illness, was on Medicaid to pay for her prescriptions, bought food with
food stamps and her own money, and among other expenses, paid $350 per
month for rent and $60 per month for a cell phone plan.
11
At one time, Mother was the payee on Father’s social security checks.
30
Maurice’s emotional and physical needs, the emotional and physical
danger to him now and in the future, the acts or omissions of the
parents that may indicate that the existing parent-child relationships
are not proper, excuses for the acts or omissions of the parents, and
programs of which the parents failed to take full advantage
Father has a long history of criminal and violent threats and conduct. He
admitted at trial that he had “anger issues” and that he became angry at Mother
often, but he provided inconsistent testimony about his abuse toward Mother. 12
He initially denied being abusive toward her, then he admitted hitting her while
she was pregnant, and then he denied hitting her while she was pregnant. Later,
he admitted that after Maurice’s birth, with Maurice in the same room, he had
punched, pushed, and choked Mother and had thrown things at her, but he could
not remember how many times he had done so. Father said that his assault of
Mother that led to his conviction occurred when he was not taking his medication.
He testified that although Mother once threw things at him, she never hit him.
The following colloquy occurred during Father’s cross-examination by Maurice’s
attorney ad litem:
Q When you get angered like this and you fly off the handle
and you do things like putting your arms around [Mother’s] neck and
squeezing her neck and things like that, do you agree with me that
you’re probably out of control?
A Yes, ma’am.
12
An August 2009 “Assessment Referral Form” from an MHMR center
noted that Father reported having “extreme” anger and said that he had
previously used oxycontin, ecstasy, and marijuana. Later MHMR records
indicate that Father was not compliant with treatment that had been
recommended by MHMR officials.
31
Q Is that somebody who needs to be around a small child?
....
A No. [Emphasis added.]
Father smoked marijuana during the time that he lived with Mother and
Maurice, and he conceded that doing so made his mental illness worse and
“enraged” him. Father could not recall how many times he had been arrested,
but documents proved that in Texas alone, apart from his conviction for
assaulting Mother, he had also been convicted twice for evading arrest and once
for possessing marijuana. According to reports from psychological evaluations,
when Father lived in California, he was charged with grand theft auto along with
multiple counts of burglary and robbery. A document admitted into evidence
indicates that in 2007, Father threatened to cut someone with a razor blade
(although Mother testified that Father had rarely acted upon threats that he had
made). Father once told his psychiatrist that when he held power tools, he
imagined stabbing them into people’s chests and using them to chop up people.
According to Mother, however, Father was never aggressive or violent toward
Maurice, and Father cared for Maurice by changing his diapers, feeding him,
bathing him, and playing with him.
Before and after Mother met Father, she was in other physically abusive
relationships with boyfriends. In fact, Mother was hit by her first three boyfriends,
including Father. Mother testified that she went to First Step, a shelter for victims
of family violence, in March 2011. Myra Gideon, who works at First Step,
32
testified that Mother stayed at the shelter for a month in the spring of 2011 and
that since that time, Mother had obtained skills to avoid abusive relationships and
had become serious about wanting to change her life. As part of First Step,
during intermittent parts of 2011, Mother attended support groups about creating
healthy boundaries and exiting the cycle of abuse, and Mother also attended
individual counseling. Mother testified that she had learned from the counseling
that she does not need a romantic relationship and that if she ever enters into
another abusive relationship, she should get out of the relationship as soon as
possible. Mother testified that she planned to continue counseling at First Step.
Mother told Gideon that Mother wanted to end her relationship with Father,
and Gideon believed that the relationship ended when Mother came to First Step.
Gideon initially expressed her belief that Mother had been “very careful” about
her relationship with Cali, but Gideon later conceded that Mother had made a
series of unsafe choices with respect to Cali and had not fully disclosed the
details of those choices, which concerned Gideon. Gideon characterized
Mother’s relationship with Cali as a “lapse in judgment” and a “setback”; she
admitted that Mother had exercised poor judgment by allowing Cali to remain in
her home after having attended group sessions for months at First Step. The
following exchange occurred during questioning of Mother by Maurice’s attorney
ad litem concerning Mother’s relationship with Cali:
Q . . . So after all these months of domestic violence
counseling, you’re going to be able to take [Maurice] home and keep
him safe from a possible abuse situation, right?
33
A Yes.
Q But in September, just a few short months ago, you
couldn’t do it, right?
A Correct.
Mother testified that she no longer had a relationship with Cali. She explained
that she would not have let Cali into her apartment if Maurice had been there.
Gideon and Mother last met with each other a week before the trial began;
Gideon testified that First Step would continue to be a resource for Mother in the
future. But Gideon conceded that Mother had not established that she could
maintain a healthy relationship with a male. Gideon said that Mother never told
her that she had held hands with Father after attending First Step.
Gideon, who received a master’s degree in counseling in 2007 and has
worked as a social worker for approximately thirty years, testified, “I know that it
does harm a child to be in a home where abuse is going on.” Gideon also
recognized that many men who abuse women were children who saw their
fathers abuse their mothers. Gideon testified that even a two-year-old child could
become insecure and fearful by witnessing domestic abuse in a home.
Father testified that he had previously been a member of a gang in
California, and he conceded that he once made money “hustling and dealing”
drugs as part of the gang.13 Although he said that he had left the gang and did
13
Father also sold drugs after moving to Wichita Falls.
34
not associate with people in the gang, he admitted that he had continued to wear
colors of the gang and did not wear colors of a rival gang.
Mother conceded that in October 2010, during the monitored return,
Maurice’s attorney ad litem told her that she needed to avoid being around
Father to keep Maurice in her home, and Mother agreed that the attorney told her
that she would need to make a choice between being with Father and having
possession of Maurice. But as we explained above, Mother was arrested after
being with Father in the same car on an early morning in November 2010, and
according to Father’s mental health worker, Mother was fully nude when the
worker visited Father at his residence in December 2010 (although Mother
testified that the worker lied about this event). Mother and Father also
associated with each other at other times after December 2010.
The evidence revealed many details, in addition to the facts recited above,
about the parents’ abuse of marijuana and their failure to fully comply with the
treatment that CPS had recommended relating to that abuse. At one time,
Father smoked marijuana “[e]very day.” Father first testified that he last smoked
marijuana six months before the termination trial, but he later said that he had
used marijuana two months before the trial, and he also admitted that he had
refused to take a drug test a month before the trial because he was “too tired.”
Father recognized that he had made a bad decision by smoking marijuana
around Maurice.
35
At trial, Mother described herself as a “recovering addict” of marijuana and
said that she had used it since she was sixteen years old. She testified that she
used marijuana to cope with the symptoms of her mental illness. Mother testified
that she did not use drugs from September 2009 until January 2011, when she
relapsed.14 But Bernal testified that she had “concerns” about the results of drug
tests that Mother took in November 2010, December 2010, and March 2011,
although she did not have concerns about a test that Mother took in June 2011.
Mother testified that she had last smoked marijuana in March 2011 and that she
had never used a different illegal drug. Like Father, however, Mother conceded
that she had refused to take a drug test a month before the trial.15
Although Mother had been ordered in 2009 to attend NA two times per
week, she did not always do so, and she therefore violated the service plan.
Salkeld emphasized at every counseling appointment that Mother should
prioritize attending those meetings. Although by the time of the trial, Mother had
attended more than a hundred NA meetings over the course of two years, she
described herself as still being on step one of the program. Mother conceded
14
In fact, Mother was arrested for possessing marijuana in January 2011.
15
A factfinder may reasonably infer from a parent’s failure to attend
scheduled drug screenings that the parent was avoiding testing because the
parent was using drugs. In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort
Worth 2003, no pet.) (citing In re D.M., 58 S.W.3d 801, 813 (Tex. App.—Fort
Worth 2001, no pet.)). Although Mother refused to take a urinalysis test a month
before the trial, she offered to take swab and hair follicle tests.
36
that she was not working on progressing through the program but was attending
meetings because the court had ordered her to do so.
Mother met with Salkeld on a regular basis from October 2009 to
November 2010. The reports from Salkeld’s counseling discuss, among other
topics, Mother’s participation in NA, Salkeld’s recommendation that Mother
attend as many NA meetings as possible, and Salkeld’s belief that Mother’s drug
recovery was the primary issue in her life. A report from Salkeld in January 2010
stated that Mother had a “tendency to provide ‘lip service’ to those who are
involved with her recovery efforts.” In a February 2010 report, Salkeld wrote, “At
this time, [Mother’s] long-term recovery is very questionable as she continues to
‘believe’ that the use of marijuana is and has been a minor issue.” In April 2010,
Salkeld noted that Mother was progressing through the steps of recovery, and he
opined that Mother’s potential for recovery was improving. In May 2010, Salkeld
reported that Mother had decided to take a “vacation” from NA sessions and that
he had encouraged her to return to them because they were a “big part of her
ongoing recovery.” Salkeld counseled Mother and Father together a few times in
July 2010;16 he described in one report that Mother was learning the steps of
recovery for her drug abuse, and he opined in another report from that month
that with more therapy, Mother and Father had “good potential to be good
16
Bernal testified that although she had encouraged Mother to not be with
Father, CPS initially arranged for the parents to attend services together because
if “[they were] going to be a couple . . ., they ha[d] to learn to work through the
issues that they ha[d].”
37
parents.” In September 2010, after the monitored return had started, Salkeld
noted that the parents were not consistently attending NA and that Father was
not financially helping Mother support Maurice. Finally, in November 2010, just
before Maurice’s second removal from Mother’s care, Salkeld wrote that Mother
had not been involved in a recovery program and that “neither parent [knew]
adequate parenting skills.”
From September 2009 until October 2011, Father went to over sixty NA
meetings. He initially testified that after a year of attending the meetings, he was
still on the first step of the program, but later, he said that he was “working on
Step 6.” Father also attended counseling twice with someone at Madden
Consulting, but Father stopped going there because he became angry when the
counselor asked him about his childhood and wanted to use role playing as a
method of treatment.
Father received a psychological evaluation from Dr. Sabine in October
2009. In Dr. Sabine’s written report from the evaluation, he noted that Father
was “hospitalized eight or nine times as a child for psychiatric reasons”; that
Father was paranoid, nervous, and evasive during the evaluation; and that
Father’s IQ was in the “intellectually deficient range.” Dr. Sabine concluded the
report by stating,
It is going to be difficult for this patient to parent effectively given the
disabling nature of his mental illness. This is indeed sad because he
appears to be very interested in the needs of his child, but in my
view, he just does not have the requisite abilities to consistently care
for the child.
38
Father also regularly participated in counseling with Polly. Polly opined in one
report that Father wanted what was best for Maurice. Other reports indicated
that Father was indecisive and stressed about the future of his relationship with
Mother. Polly’s report from Father’s December 2009 counseling sessions states
in part,
It appears that [Father] loves his child and has some insight into
what is necessary to take care of this child. However, his unstable
relationship with the child’s mother and the resulting confusion and
exacerbation of his mental disorder . . . may hinder his ability to
provide for the well-being of the child. If the child is returned to the
home this counselor recommends significant oversight of these
parents.
Mother also received a psychological evaluation from Dr. Sabine. When
Mother met Dr. Sabine, however, he was not able to reach a result from the
evaluation because he concluded that she was not answering questions honestly
and fully.
Mother agreed that someone at MHMR told her that marijuana had poor
effects on people who are schizophrenic. She also conceded that she had
stopped taking the medication for her schizophrenia at times in the past because
she did not like those drugs’ side effects. Mother represented, however, that she
had been taking the medication for her mental illness during the year preceding
the trial and that she would continue taking it.
Documentary evidence indicates that as late as October 2010, Father had
suicidal thoughts. To alleviate his paranoid schizophrenia, Father needed to take
medication. But when Mother delivered Maurice, Father did not have a doctor
39
and was not taking medication. Father testified that the dosage of the medication
that he was taking at the time of the trial was too high.
The propriety of the jury’s implicit determination of Maurice’s best
interest
Considering all of the evidence under the Holley factors, we hold that the
jury could have reasonably formed a firm conviction or belief that termination of
each parent’s rights is in Maurice’s best interest. As to Father, the jury could
have formed a firm belief or conviction that termination is in Maurice’s best
interest because, among other reasons, Father had failed to consistently receive
appropriate treatment for his schizophrenia, had shown a propensity for violent
threats and acts, had exposed Maurice to family violence, had used marijuana
around Maurice and was still using it near the trial, had committed several crimes
before and after Maurice’s birth, and had seemed to lack a bond with Maurice
during visits after the end of the monitored return. Similarly, concerning Mother,
the jury could have formed a firm belief or conviction that termination is in
Maurice’s best interest because, among other reasons, she had failed to remove
Maurice from exposure to family violence, had used marijuana around him and
had continued to use it during most of the Department’s case (when she knew
that doing so risked her reunification with him), had failed to consistently receive
appropriate treatment for her use of marijuana or her mental illness throughout
the Department’s case, had been evasive or misleading in counseling, had
allowed Maurice to remain in a home with someone whom she believed was
40
sexually abusing him, had risked his removal from her care by associating with
Father after receiving instructions not to, had not demonstrated a bond with
Maurice during visits after the end of the monitored return, had continued to
make poor decisions regarding her personal associations until shortly before the
trial began, and had not maintained a stable residence in the year preceding the
trial. Finally, with respect to both parents, in addition to the factors explained
above, the jury could have determined that termination is in Maurice’s best
interest because he was residing in a safe foster home, was thriving there, was
bonded to the home’s residents, and had the opportunity to have his future
permanently stabilized through adoption.
For all of these reasons, applying the appropriate standards of review, we
hold that the evidence is legally and factually sufficient to support the jury’s
determination that termination of each parent’s rights is in Maurice’s best interest.
We therefore overrule Mother’s third issue and Father’s second issue.
Substantive Due Process
In Father’s first issue, he argues that the jury’s verdict violates his right of
substantive due process.17 See Tex. Workers’ Comp. Comm’n v. Patient
Advocates of Tex., 136 S.W.3d 643, 659 (Tex. 2004) (explaining that substantive
due process protects against the arbitrary and oppressive exercise of
17
Mother does not raise substantive due process as an independent issue,
but in a footnote, she states that she agrees with Father’s brief on substantive
due process.
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government power). The argument in Father’s first issue recasts the argument in
his second issue: that under the evidence in this case, termination was
inappropriate and arbitrary. We have rejected that argument. Assuming that
Father’s issue about substantive due process may be construed to relate to
something other than evidentiary sufficiency, because Father did not assert a
violation of substantive due process at trial, he waived that issue for appeal. See
Tex. R. App. P. 33.1(a)(1); L.M.I., 119 S.W.3d at 710–11; In re U.P., 105 S.W.3d
222, 237 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Swinney v.
Mosher, 830 S.W.2d 187, 196–97 (Tex. App.—Fort Worth 1992, writ denied).
We overrule Father’s first issue.
Conclusion
Having overruled all of the parents’ issues necessary for disposition, we
affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
GARDNER, J., concurs without opinion.
DELIVERED: June 7, 2012
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