in the Interest of O.E.W.-K., a Child ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00199-CV
IN THE INTEREST OF O.E.W.-K.,
A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Mother appeals the trial court‘s order terminating her parental
rights to her son, O.E.W.-K. In eight issues, Mother challenges the legal and
factual sufficiency of the evidence regarding the trial court‘s endangerment and
best interest findings. We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND2
The trial court made 120 Afindings of fact.@ They are primarily recitations
and summations of testimony presented during trial. Because Mother challenges
the legal and factual sufficiency of the evidence to support the grounds argued
for termination and the best interest finding, we incorporate the trial court‘s
findings of fact into our detailed recitation of the evidence presented in this case.
We attempt to present the evidence in chronological order.
A. Mother’s Background
While living in Washington, Mother gave birth to O.E.W.-K. on June 12,
2003, and they later moved to Texas. As set out in more detail below, Mother
had a difficult childhood that included alleged sexual abuse by her grandmother‘s
husband; she also struggled with suicidal and homicidal thoughts; engaged in
self-mutilation; participated in a gang prior to O.E.W.-K.‘s birth; used drugs
before and after O.E.W.-K.‘s birth; spent time in jail for drug-related charges;
refused to address her mental health issues; yelled at, threatened, and hit other
adults, including her grandmother; bruised O.E.W.-K.; and demonstrated poor
parenting skills.
B. Mother’s Actions at O.E.W.-K.’s School
1. Threatening and Hitting O.E.W.-K.’s Teacher
Ferrell Yeokum, O.E.W.-K.‘s elementary school principal, testified that
during the first few weeks of school in September 2008, Mother had grabbed
O.E.W.-K.‘s kindergarten teacher‘s wrist on at least three occasions and had
2
We recognize that some of the testimony is conflicting and inconsistent.
This factual background section of our opinion, however, sets forth the testimony
given, even when it is inconsistent.
2
made other threatening moves toward her. Mother also threatened to slit the
throat of anyone who touched O.E.W.-K. Yeokum was present when Mother
said that she was ―waiting to kick [O.E.W.-K.‘s teacher‘s] ass.‖ The police came
and interviewed the teacher, but no ticket was issued to Mother.
Because of ongoing problems and continuing concerns with the way that
Mother was handling O.E.W.-K.‘s original kindergarten teacher, Yeokum handed
Mother a letter two weeks after school started. The letter stated, among other
things:
We regret to inform you that we‘re taking the following safety
precautions in response to your recent behavior on campus, which
includes physical contact with a staff member, use of profanity, and
disruption of the school environment.
Effective immediately, you must follow these procedures when
visiting our campus. Enter the campus only through the front doors.
Drop off and pick up your student at the front office only. You are
restricted from entering the cafeteria at drop-off or pick-up times.
You are required to have an administrator escort you while in the
building. A call in advance is preferable to be sure we have an
administrator on duty. You are not permitted to contact your son‘s
teacher directly. Please send any communication directly to
administrative staff. We will forward them to the teacher.
These safety precautions will remain in effect indefinitely, and
if you choose not to follow each of them, we will immediately involve
law enforcement.
Three Fort Worth police officers were present at the meeting when Yeokum
handed Mother the letter.
As a result of Mother‘s actions toward O.E.W.-K.‘s original kindergarten
teacher, Yeokum moved O.E.W.-K. to a different teacher‘s room in an attempt to
preclude future incidents and to make sure that everyone was safe. The
3
situation improved for a time, but then it became evident that Mother seemed to
have a romantic interest in the assistant principal because she was sending gifts
to her in O.E.W.-K.‘s name. Mother brought a knife to school and exhibited it to
the assistant principal and admitted to Yeokum that she had brought the knife
and had opened it at the school. Based on the school administrators‘ concern
over these situations, they decided to issue a criminal trespass warning to
Mother and had O.E.W.-K. removed from the school.
Yeokum felt that Mother cared for her son, and Yeokum wanted to help her
―navigate the waters‖ because she seemed to have some difficulties knowing
what the rules and procedures were. They had a good working relationship from
September 8, 2008 through the end of January or early February 2009. During
that time, Mother told Yeokum that she had been in a gang for a number of
years, that O.E.W.-K.‘s father was the leader of the gang, and that they were
raising O.E.W.-K. to become a member of the gang. Mother said that she had
been in jail on drug charges. When Yeokum told Mother that O.E.W.-K. was a
very smart young man, Mother responded that she was surprised to learn that
―because when she found out that she was pregnant, she had been taking drugs,
and she wondered if that was going to affect his intelligence.‖
2. Smoking Marihuana in the Car with O.E.W.-K.
David Piercefield, a physical education aide, testified that he walked
O.E.W.-K. to Mother‘s car one day and saw her smoking a joint. Piercefield
testified that he was concerned for O.E.W.-K.‘s safety and for the safety of other
4
students because the middle school was letting out its students and because
Mother was ―known to not be the safest driver.‖ Piercefield stayed at the car with
Mother and O.E.W.-K. for forty-five minutes to ―make sure there was a little wear-
off time.‖ During that time, Mother told him that she smoked marihuana every
day.
C. CPS Involvement
1. Jaime Jaco
Jaime Jaco, an investigator for CPS, testified that she was assigned to
O.E.W.-K.‘s case in February 2009 after receiving a report that Mother had gone
to O.E.W.-K.‘s elementary school and had taken a knife into the assistant
principal‘s office. Jaco said that during her first contact with Mother, she was
very argumentative and combative; Mother made appointments, missed them,
and then refused to reschedule. Jaco warned Mother that if she did not come to
her appointments, Jaco would go to Mother‘s house and would bring law
enforcement with her; Mother told Jaco that Jaco would be sorry and that she
should go ahead and bring the police and see what happened.
Jaco spoke with Ms. Johnson, O.E.W.-K.‘s maternal great grandmother, on
March 5, 2009. Ms. Johnson said that she had witnessed Mother hit O.E.W.-K.
on the head and that she had seen Mother cause bruises on O.E.W.-K. Ms.
Johnson said that Mother had slapped her in the shoulder after Ms. Johnson had
undergone shoulder surgery; the pain caused Ms. Johnson to go to the doctor,
and the doctor told Mother not to hit Ms. Johnson any more. Ms. Johnson said
5
that Mother was violent, that she got loud and crazy, and that she had a dual
personality. Ms. Johnson said that ever since Mother and O.E.W.-K. moved in
with her, she (Ms. Johnson) became the primary caretaker of O.E.W.-K.; she has
fed him, bathed him, and helped him with his schoolwork.
On March 11, 2009, O.E.W.-K.‘s teacher reported seeing bruises on him.
Jaco thereafter went to Mother‘s home to make contact with her on March 12, 17,
and 24, 2009. No one answered the door on the first two dates, but Jaco was
able to meet with Mother and O.E.W.-K. on March 24, 2009. Jaco received a
tour of the house from Mother and was informed that in addition to Mother and
O.E.W.-K., Ms. Johnson and Mr. Johnson lived there.3
While Jaco was there, O.E.W.-K. came in and asked Mother to get
something out of the refrigerator, and Mother followed him into the hallway,
slapped him on the top of his head, and said, ―[W]hat are you, a little girl?‖
O.E.W.-K. did not fall down but whimpered a little.
During Jaco‘s visit, she saw a red crescent bruise about one inch from
O.E.W.-K.‘s eye. The area inside the crescent-shaped bruise was yellow and
blue. O.E.W.-K. said that Mother had hit him with a belt. Jaco also saw two,
two-inch-long, red, rectangular bruises on O.E.W.-K.‘s right arm; a bruise on his
hands; and a two-inch-long, blue, rectangular bruise on his right leg. When Jaco
3
Ms. Johnson was not there at the time because she was in Washington
having surgery. Ms. Johnson wrote in a letter, which was admitted into evidence,
that Mother had whipped O.E.W.-K. inappropriately during Ms. Johnson‘s
absence.
6
asked Mother about the bruises on O.E.W.-K., she initially said that O.E.W.-K.
had gotten into trouble but denied that she had physically disciplined him. When
Jaco told Mother what O.E.W.-K. had said, Mother went and asked O.E.W.-K.
how he had gotten the bruises, and he said that she had hit him. Mother laughed
and asked O.E.W.-K. again. When O.E.W.-K. responded with the same story,
Mother admitted that she had spanked him with a belt. She said that while she
was spanking him, he moved around, and she accidentally hit him in the face.
Mother initially said that she had hit O.E.W.-K. because he had been
disrespectful to her, but then she said that he had gotten in trouble because he
had not been doing his homework.
Mother told Jaco that she had been diagnosed with bipolar disorder,
oppositional/defiant disorder,4 ADHD, and multiple personality disorder. She said
that she refused to take medication and to go to a counselor.
Jaco put a safety plan in place at the Johnson home on March 24, 2009. 5
The terms of the safety plan required Mother to not physically discipline O.E.W.-
4
Ms. Johnson wrote in a letter that was admitted into evidence, ―[Mother‘s]
Oppositional Defiant Disorder is really not easy for me. Especially, because she
won‘t shut up. It is almost torture watching her rant and rave with little control in
areas of reasoning, impulse control, and judgment.‖ Ms. Johnson‘s letter also
states that after she put a stop to Mother‘s reading books on Jeffrey Dahmer and
others, Mother ―became aggressive, exhibiting rage toward me for years. She
went crazy. Stole my money. Refused to go to school. . . . She was mad at me
days, weeks, and years, . . . .‖
5
Jaco also spoke to Mr. Johnson, who said that he was Ms. Johnson‘s
former husband but that they still lived together and were buying the house that
they were living in together.
7
K., to cooperate with CPS, and to follow all of CPS‘s recommendations. Mother
signed the plan but said that she was only signing it so that Jaco and Gary Hill,
the CPS investigator, would leave her house. Mother said that she would not
work any services, such as attending parenting classes or counseling sessions.
On April 10, 2009, Ms. Johnson reported to Jaco that Mother had hit
O.E.W.-K. with a belt. Ms. Johnson also heard Mother tell O.E.W.-K. not to tell
anyone about the bruises and to tell his teachers that if they checked him for
bruises, she would kill them. Ms. Johnson also told Jaco on April 10 that Mother
had used marihuana and had a history of using crack cocaine, including while
she was pregnant with O.E.W.-K. Ms. Johnson said that Mother continued to
use crack cocaine after O.E.W.-K. was born.6 While Mother was using drugs,
she left O.E.W.-K. alone, and he was removed by CPS in Washington State and
placed with Jamie Johnson, who was his great uncle. Ms. Johnson said that
Mother‘s current routine included sitting at home and watching television all day;
she refused to go to the store or do anything else.
On April 15, 2009, Ms. Johnson called Jaco and said that there had been
an incident that morning when Mother had acted violently toward O.E.W.-K.
After he told Mother that he was sick and did not want to go to school, Mother got
upset, grabbed him, and pulled him. Ms. Johnson said that she was fearful that
6
Ms. Johnson later clarified that she was not saying that Mother was using
crack cocaine at that time (on April 10, 2009). Jaco did not administer a drug test
to Mother, so she was not aware of whether Mother was using at that time.
8
Mother was ―really going to hurt him.‖ Jaco heard Mother yelling in the
background: ―No one is going to tell me I can‘t hit my son. If I want to beat him,
I‘ll beat him, and there is nothing you can do about it.‖
On May 20, 2009, the Texas Department of Family and Protective
Services (hereinafter TDFPS or the Department) removed O.E.W.-K. from
Mother‘s care. After TDFPS removed O.E.W.-K., Ms. Johnson said that she
realized that he had caused the bruising himself. Ms. Johnson said that O.E.W.-
K. would not be in foster care for long because she was going to tell the judge
that O.E.W.-K. had caused the bruising himself and that his teachers had been
lying about Mother. Ms. Johnson told Jaco that she wanted to be considered as
a placement for O.E.W.-K., but she did not want Mother to move out of her
house.
2. Gary Hill
As mentioned above, Gary Hill, the CPS investigator, worked with Jaco on
O.E.W.-K.‘s case. Hill met Mother on March 24, 2009, and she told him that
O.E.W.-K.‘s father was Jean K. and that he did not pay child support.
Mother said that she had been incarcerated in Purdy, which is the State of
Washington‘s Women‘s Correctional Facility, after being arrested at age fifteen
for possession of a controlled substance and then tried as an adult for the crime.
Mother said that she served five years.
9
Mother told Hill that she had used marihuana while she was pregnant with
O.E.W.-K. but had stopped using during her third trimester. Mother said that she
lived with Ms. Johnson and that Ms. Johnson helped take care of O.E.W.-K.
O.E.W.-K. was present during Hill‘s visit with Mother, and they talked about
O.E.W.-K.‘s current injury to his face. O.E.W.-K. said that Mother had caused it.
3. Joanna Letz
Joanna Letz, the first CPS caseworker who was assigned to O.E.W.-K.‘s
case in May 2009, testified that when she met with Mother on June 2, 2009,
Mother told her that she had been accused of attacking O.E.W.-K.‘s teacher in
February 2009. Mother said,
I‘ll tell you exactly what happened was the teacher had put a
mark on his hand and that constitutes, to me, that‘s a deterrent to
me that it is the mark of the beast from the Bible, and it made me
very angry, so I went in and I grabbed the teacher by the neck,
shoved her up against the wall, and told her don‘t you ever touch my
son again.
On June 11, 2009, Mother called and asked Letz questions about a family
group conference because her attorney had advised her that she should have
one. Letz told Mother that a family group conference can be helpful but is not
mandatory, and Mother said that she did not want to have one because she
thought it would just be a ―b[---]h-fest‖ and because she did not want to have to
see Jaco.
On June 16, 2009, Letz gave Mother a family service plan and went over it
with her.
10
On June 30, 2009, Letz and her supervisor met with Ms. Johnson to
explain why she would not be undergoing a home study for placement of O.E.W.-
K. in her home.7 They explained to Ms. Johnson that there were fifty-eight cases
of CPS allegations in the home while the family lived in Washington. Ms.
Johnson indicated that all of those allegations were Mother‘s fault and that she
had ―bad blood‖ because she was always in trouble, was very defiant, and was
disrespectful.
Letz questioned Ms. Johnson about whether she had ever thrown a
computer at Mother because that is what Mother had told Letz, but Ms. Johnson
said that although she had gotten very mad because Mother had hurt her
feelings, she had dropped only a keyboard over the top of the stairs.
Letz also questioned Ms. Johnson about Mother‘s allegations that Mr.
Johnson had sexually abused her, and Ms. Johnson said that she had asked Mr.
Johnson about the allegations and that he said that he did not do anything. Ms.
Johnson believed him.
Ms. Johnson said that her daughter Rosalyn (Mother‘s mother) had also
made allegations about sexual abuse by Mr. Johnson and had made an outcry at
7
The record reveals that a home assessment was ultimately conducted on
Ms. Johnson‘s home. Letz testified that although O.E.W.-K. had stayed with his
great uncle Jamie for one or two years while Mother was incarcerated in
Washington, Letz did not conduct a home study on Jamie because paperwork
that she had received showed that his wife had a criminal history involving drugs.
Letz learned that Jamie had spent time in prison for a conviction for breaking into
a home.
11
school; Mr. Johnson admitted to touching her breasts. When Letz questioned
why it would be hard for Ms. Johnson to believe that Mr. Johnson had sexually
abused Mother if he had sexually abused Mother‘s mother, Ms. Johnson said
that she did not know what was the truth, but she did know that Mr. Johnson had
sexually abused Rosalyn because he admitted to it.
Also on June 30, 2009, Ms. Johnson stated that she suffered from
fibromyalgia, diabetes, osteoarthritis, and mixed connective tissue disease. She
said that seventeen years before, she had been a drug user.
On July 1, 2009, Mother visited the CPS office. During the appointment,
Mother said that if she were tested for drugs right then, the test would be positive
because she had been smoking pot. Mother admitted that it ―was really stupid on
[her] part‖ to be smoking pot when she had a CPS case pending. Mother also
gave an update on her progress with the service plan and said that she had been
attending parenting classes and had learned different ways to deal with O.E.W.-
K. other than spanking him.
On August 12, 2009, Mother came in to the CPS office and said that she
had a pretty bad weekend and had been cutting again; she showed Letz her self-
mutilation marks. After that episode, Letz frequently asked Mother about self-
mutilation and did not see evidence of any additional cutting episodes.
Mother‘s service plan required her to attend anger management classes,
parenting classes, and individual counseling and to obtain a psychosocial
assessment, a drug assessment, a psychological evaluation, and a psychiatric
12
evaluation. Mother completed a psychological evaluation, parenting classes, and
anger management. At trial, Letz was not aware of whether Mother had
completed individual counseling because the case was transferred to Ruth
Groomer on September 30, 2009, while Mother was still working her service
plan; Mother did not like the counselor she saw for individual counseling, so Letz
had set up counseling for Mother with Connie Burdick. Mother had also not
completed the psychiatric evaluation at the time the case was transferred.
Mother tested positive for drugs one of the two times that Letz drug tested her.
4. Ruth Groomer
Groomer, who became O.E.W.-K.‘s caseworker after Letz, did not believe
it would be in O.E.W.-K.‘s best interest to testify in the courtroom. She said that
it would cause him stress because he had a lot of fear of Mother and Ms.
Johnson.
At the time of trial, O.E.W.-K. was repeating kindergarten. Groomer knew
that there were some issues with O.E.W.-K.‘s grades, that he was struggling, and
that he had required special attention. When O.E.W.-K. first came into care, he
took speech therapy and no longer had a problem being understood; Groomer
said that O.E.W.-K. did not have any physical problems, but he had some
behavior problems at school and at times other than Tuesday afternoons after his
visits with Mother and Ms. Johnson. Groomer was aware that O.E.W.-K. ―tried to
slit some kid‘s throat,‖ and she was sure that he did not hear about behavior like
13
that in the foster home. Groomer believed that O.E.W.-K.‘s previous
environment was a direct reflection of his current behavior.
Groomer testified regarding Mother‘s compliance with her service plan.
Mother was required to and did undergo a psychological evaluation. Mother
completed a drug assessment, anger management classes, and parenting
classes. Mother did not complete her counseling or MHMR. And Mother never
gave Groomer a report from Merit Family Services, which is where Mother was
supposed to go for a psychosocial assessment.
Groomer said that Mother was asked to provide a urinalysis (UA) in March
2009, August 2009, and in December 2009. On March 10, 2009, Mother
admitted to smoking marihuana and taking cough medicine, and Groomer did a
drug swab that month. Groomer said that Mother did not take a UA on
December 8, 2009, and so she confronted Mother about it; Mother said that she
had forgotten, which counted as testing positive.
Mother told Groomer that she had a psychiatric evaluation done but that
her second appointment was not scheduled until April 10. Groomer advised
Mother to reschedule the appointment because the case would be over by then,
but to Groomer‘s knowledge, Mother did not reschedule. Although Mother told
Groomer that she had visited MHMR for a psychiatric evaluation, Groomer did
not know of Mother‘s participating in any of MHMR‘s services, including medical
treatment.
14
Groomer said that although Mother had completed parenting classes,
Mother‘s parenting skills were ―very lacking‖; she did not know how to interact
with O.E.W.-K.; and she interrogated him more than interacted with him. 8
Groomer suggested that Mother should color or read a book with O.E.W.-K., and
Mother said, ―[W]e don‘t color.‖ The next week, Mother laid on the floor and
colored a picture while O.E.W.-K. sat beside her. Additionally, Mother did not
appear to know how to play with O.E.W.-K. She would stand in the hall and
throw a ball as hard as she could at O.E.W.-K. while he was sitting on the couch
but did not understand why Groomer had a problem with her throwing the ball at
O.E.W.-K. When O.E.W.-K. told Mother that he had gotten in trouble at school or
at the foster home, Mother laughed, gave Ms. Johnson a high five, and said she
would have liked to have been there and seen that. When O.E.W.-K. talked
about ―his dog,‖ Mother advised him that it was the dog at the foster home and
gave O.E.W.-K. six dollars when he corrected himself. When O.E.W.-K. told
Mother that he had a girlfriend, she said, ―That‘s my pimp. Pimp ‗em high.‖
Moreover, Mother frequently used curse words during the visits, brought
weapons to the office after being repeatedly asked not to bring them to the office,
and texted and talked on the phone during the visits.
8
Groomer did not think it would be appropriate for O.E.W.-K. to have
therapy sessions with Mother due to the behaviors that Mother had exhibited
toward him.
15
During this case, Mother said that she was living with her girlfriend, 9 but
when Groomer called, the lady said that Mother did not live there. Groomer said
that at the time of the trial, Mother was living in a motel or boarding house that
was paid for by other people because Mother had no job, no home, and limited
income.
Groomer said that Mother had made few positive changes. She remained
defiant; she continued to bring her knife to the CPS office even after being asked
not to. Mother seemed to take pleasure in seeing if people were afraid of her.
She never gave direct answers. She would not do anything Groomer asked her
to do until Groomer ―put her between a rock and a hard place.‖
Groomer did not believe, based on the parts of the service plan that
Mother had completed, that Mother would be able to provide a stable, nurturing
home for O.E.W.-K. Groomer also did not believe that Mother could meet
O.E.W.-K.‘s emotional and physical needs because she had showed no
indication that she could meet his needs. Ms. Johnson, not Mother, paid for
whatever was brought to the office for him. Before Ms. Johnson had moved to
Texas, she had set up a place in Washington for Mother and O.E.W.-K. to live,
but Mother had failed to take care of O.E.W.-K., and the police found him home
alone. Then, Mother bruised O.E.W.-K. once she moved to Texas with him.
9
Groomer was not sure when Mother had moved out of Ms. Johnson‘s
house.
16
Although Ms. Johnson made it abundantly clear that she did not want CPS
to take her great-grandson from her,10 Groomer did not believe Ms. Johnson
could protect O.E.W.-K. from emotional and physical danger due to the
interaction Groomer had witnessed between Ms. Johnson and Mother. Ms.
Johnson knew that Mother had been abusive toward O.E.W.-K., but she left him
in Mother‘s care anyway. Groomer also had concerns about Ms. Johnson‘s
ability to parent and to provide a stable home for O.E.W.-K. based on the fact
that Ms. Johnson believed that Mr. Johnson may have inappropriately touched
her daughter Rosalyn, yet continued to live with Mr. Johnson, and Groomer had
concerns about Ms. Johnson‘s age and health conditions.
Further, Mother and Ms. Johnson were often disruptive to each other, to
O.E.W.-K., to the staff, to Groomer, and to others in the office during the visits,
and Ms. Johnson interrogated O.E.W.-K. during the visits. Other times, they
were very appropriate during the visits. Groomer testified that Ms. Johnson was
also defiant, and the day before the trial, Ms. Johnson was openly defiant toward
Groomer while O.E.W.-K. was present, and the security guard had to ask Ms.
Johnson and Mother to leave.
10
According to the home assessment, Ms. Johnson lived beyond her
means and was socially isolated. The home assessment said that the home was
clean, that O.E.W.-K. had his own room, and that Ms. Johnson was purchasing
the home. Ms. Johnson‘s home, as far as the appropriateness of the house and
furnishings, was on equal footing with the foster parents‘ home. There were no
allegations that O.E.W.-K. was malnourished while Ms. Johnson was caring for
him.
17
Groomer believed that it was in O.E.W.-K.‘s best interest to have Mother‘s
parental rights terminated due to the physical abuse, the physical neglect, and
her inability to care for his emotional, educational, and physical needs. Groomer
said that Mother‘s drug use and criminal history also played into her
recommendation that Mother‘s parental rights should be terminated.
Groomer said that CPS‘s permanency plan for O.E.W.-K. was adoption by
his foster parents, who had decided to adopt him. Groomer said that O.E.W.-K.‘s
foster parents were ―very appropriate‖ with him; they set boundaries, they helped
him understand right and wrong choices, and they had appropriate
consequences for him. They encouraged him in his music ability and provided
outside activities. His foster dad took O.E.W.-K. fishing, and O.E.W.-K. was
excited that he had caught the biggest fish. O.E.W.-K. had his own room at their
house. They provided adequate nutrition for O.E.W.-K. The foster parents‘
home was very stable; both parents had college degrees and stable employment,
and they were in the process of purchasing their home. Their home was a safe
place for O.E.W.-K.; it was in a safe neighborhood and was extremely clean.
They were very observant and knew what he was doing at all times.
D. Visits
Mother‘s visits were scheduled every Tuesday from 10:00 to 11:00 a.m.
Mother and Ms. Johnson came to the visits regularly, but there were some visits
that Ms. Johnson did not attend. The following are summaries of several visits
18
as observed by an investigator, the two caseworkers, case aides, an intern, and
the CASA volunteer.
1. After the Removal on May 20, 2009
After the removal, Jaco noted that when O.E.W.-K. saw Ms. Johnson and
Mother at a visit, he was really nervous and scared. Once he was in the room
with them, he calmed down after a few minutes and hugged Mother, and they
played and talked for some time.
2. May 22, 2009
Carolyn Demmerritte, a case aide with CPS, testified that she supervised a
visit with O.E.W.-K., Ms. Johnson, and Mother on May 22, 2009. O.E.W.-K. was
nervous the entire visit, twiddling his hand as he sat in the rocking chair. Every
five minutes, he went to Demmerrite‘s side, said he was ready to go, and asked
her to give him a hug. Demmerritte hugged him and asked if he wanted to try to
go back and spend more time with Mother and Ms. Johnson, and he went back
over.
During that visit, Ms. Johnson and Mother asked O.E.W.-K. about his
bruises and then asked if he remembered that he had fallen off the piano.
Mother tried to get O.E.W.-K. to say that his foster father had been
inappropriately touching him.
Also during the visit, Ms. Johnson told O.E.W.-K. that CPS and his foster
parents were brainwashing him. Ms. Johnson also kept saying that the foster
parents were telling O.E.W.-K. that he could not come home.
19
Mother wanted to end the visit because O.E.W.-K. kept talking about his
foster parents. Although the visit was scheduled to last an hour, it lasted only
half an hour.
3. October 6, 2009
Sandy Boatner, a CPS case aide, testified that she supervised a visit on
October 6, 2009 with Mother, Ms. Johnson, and O.E.W.-K. During that visit,
Mother played dodge ball with O.E.W.-K. Boatner observed that Mother threw
the ball fairly hard and hit O.E.W.-K. such that he would say, ―Ouch. That hurts.‖
Also during the visit, Mother talked about ―rolling her smokes.‖ Mother used
profanity several times, and Boatner interrupted the visit twice to warn her to
watch her language.
4. October 13, 2009
Amber Thompson, who was formerly an intern in the conservatorship unit
at CPS, testified that she observed a visit between O.E.W.-K. and Mother on
October 13, 2009. During the visit, Mother and O.E.W.-K. talked about spelling
and numbers, and O.E.W.-K. apologized for not knowing his numbers. Mother
told him that the reason CPS took him into custody was because he did not know
his numbers; but Mother said that it was ―okay, not to worry about it [i.e., not
knowing his numbers]‖ because she had learned patience. Mother also told
O.E.W.-K. that he was ―brought up halfway good.‖
20
O.E.W.-K. appeared to be scared of Mother and did not want to stay close
to her. Mother asked him to stay close to her, and he did for a little while before
wandering away.
During the visit, Mother read a text message out loud and said, ―Get off my
nuts.‖ O.E.W.-K. moved away from her, and she said, ―No, son. I wasn‘t talking
to you. I don‘t speak roughly to kids any more.‖ However, Mother used profanity
twice during the visit.
5. October 20, 2009
During the visit on October 20, 2009, O.E.W.-K. told Mother and Ms.
Johnson about upcoming Halloween festivities, and Ms. Johnson ―said in a loud,
authoritative voice that he should get down on his knees and ask God to forgive
him because he had worshipped Satan, and when [O.E.W.-K.] hesitated, she
said, I mean it, [O.E.W.-K.] Now. Get down on your knees and ask God to
forgive you.‖ Groomer interrupted the visit, put O.E.W.-K. in a room with the
case aide, and told Ms. Johnson and Mother that O.E.W.-K. had done nothing for
which he needed to ask forgiveness. Groomer brought O.E.W.-K. back in the
room, and Ms. Johnson asked him if he was afraid of her; he held out his left
hand and made a fist with his right hand and hit his left palm and said he was
when she did that to him.11 Ms. Johnson asked to speak to Groomer‘s
supervisor, questioned Groomer‘s credentials, and shook her finger in Groomer‘s
11
Groomer said that O.E.W.-K.‘s statement that he was afraid of Ms.
Johnson was an indication of abuse.
21
face. When Groomer asked Ms. Johnson not to shake her finger in her face, Ms.
Johnson held out her hand to Groomer‘s face and said, ―I rebuke you, Satan.‖
6. December 8, 2009
Boatner also supervised a visit on December 8, 2009. When Mother
arrived, she gave O.E.W.-K. a small hug. Mother asked him to sit in her lap, but
he would not; he stood in front of her wringing his hands. During the visit, Mother
kept closing her eyes and smiling a lot, which she normally did not do. Boatner
asked the caseworker to come and observe Mother‘s behavior, and the
caseworker asked Mother to take a drug test after the visit.
7. December 15, 2009
Boatner supervised a visit on December 15, 2009, at which Mother picked
up O.E.W.-K., swung him around, and tried to put him on her lap, but he would
not sit on her lap and ignored her.
8. December 29, 2009
During the visit that Boatner supervised on December 29, 2009, Mother
and Ms. Johnson both asked O.E.W.-K. where a certain necklace was, and he
got very upset and started crying and wringing his hands. O.E.W.-K. knocked on
the observation window, and Boatner came out, picked him up, and held him.
9. January 12, 2010
Boatner supervised a visit on January 12, 2010, during which O.E.W.-K.
mentioned that he had a girlfriend, and Mother said, ―That‘s my pimp. Pimp ‗em
high. You go, man.‖ Also during that visit, O.E.W.-K. ate everything in his lunch
22
except his sandwich. When Boatner pointed out to Mother that O.E.W.-K.
needed to eat his sandwich because lunch would be over when he returned to
school, Mother responded by saying, ―[L]et him eat what he wants.‖
10. January 26, 2010
Boatner observed a visit on January 26, 2010, during which O.E.W.-K.
would not sit next to Mother or Ms. Johnson for any length of time because he
was afraid for them to check his nose and ―different things.‖ Throughout the visit,
O.E.W.-K. was constantly wringing his hands. Mother noticed O.E.W.-K.‘s
behavior and said that he had a right to be afraid but that she did not hit
anymore. During the visit, Mother sang ―Penitentiary Bound‖ over and over and
asked her son if he knew what it meant; she told him, ―[D]on‘t worry about it,
because you won‘t have to worry about it.‖ Also during that visit, Mother flipped
off Boatner and called another caseworker a maggot. Mother said, ―[D---] it to
hell,‖ ―shit,‖ and d[---].‖ When Boatner interrupted the visit and told her not to say
those words, O.E.W.-K. cringed, and Mother responded, ―That‘s not cussing, . . .
would you like me to really cuss?‖
11. February 2, 2010
During the February 2, 2010 visit, Mother mentioned that O.E.W.-K.‘s
grandfather was coming and that they were going to the shooting range; O.E.W.-
K. started backing up, exhibiting that he did not like that Mother was talking about
guns.
23
12. February 9, 2010
Mother was ten minutes late to the visit on February 9, 2010, which was
scheduled to last an hour. Forty minutes into the visit, O.E.W.-K. knocked on the
window and was shaking all over; he put his arms around Boatner and wanted to
go into the observation room.
13. March 23, 2010
During the March 23, 2010 visit, Ms. Johnson told O.E.W.-K. a story about
ants. Ms. Johnson said that a little ant was removed from his family and that he
was afraid. The family missed him very much. But there was a bad ant who hit
and smoked weed, and O.E.W.-K. acknowledged that Mother did that. The
mean ant hurt the little boy, and O.E.W.-K. said that Mother did that to him. Ms.
Johnson was shaking during the visit because she is a diabetic and needed to
eat, and Mother said that she was going to talk to her uncle Jamie about Ms.
Johnson‘s not taking care of herself.
14. Other Visits Observed by Boatner
Boatner recalled a visit during which Mother told O.E.W.-K that she was
not going to drink any more, but she subsequently went to a club on New Year‘s
Eve. There was also a discussion about O.E.W.-K.‘s consumption of alcohol,
and Mother said that he needed to get his story straight: ―I didn‘t let you drink. It
was your dad.‖ On another occasion, inappropriate music was playing on
Mother‘s phone, and a case aide from another case went in and asked Mother to
turn it off; she complied.
24
Boatner said that Ms. Johnson ate candy during the visits and that Mother
told her that she needed to quit eating it because she was diabetic.
During the visits that Boatner observed, she saw some tender moments
between Mother and O.E.W.-K. Boatner said that O.E.W.-K. was very stiff
around Mother but that there were times when he kissed her. They also had a
routine where Mother would sing a little song before they left. O.E.W.-K. kissed
and hugged Ms. Johnson sometimes. Boatner did not observe a difference in
O.E.W.-K.‘s behavior when he was visiting with Mother as opposed to Mother
and Ms. Johnson.
Boatner also observed visits between O.E.W.-K. and Jamie Johnson.
Jamie came to two visits and mostly observed; one visit was by himself and was
―very appropriate‖ in Boatner‘s opinion. O.E.W.-K. remembered Jamie and did
not cringe or wring his hands during the visit.
15. Visits Observed by Letz
Letz observed quite a few of the visits and saw that Mother brought school
supplies and school clothes for O.E.W.-K.
16. Other Visits Observed by Groomer
Ms. Johnson, at other visits, was much softer-spoken when she spoke to
O.E.W.-K. She urged O.E.W.-K. to follow the rules in his foster home to earn
back his toys that had been taken away, and this showed appropriate parenting.
However, she laughed when he got in trouble. Ms. Johnson made snide
comments about O.E.W.-K.‘s haircut and made comments about his clothing
25
being inappropriate—Goodwill clothing, dirty clothing—to the point that it was
obsessive. There was rarely positive reinforcement.
Ms. Johnson asked O.E.W.-K. if he had been telling people that he wanted
to go home and told him that he needed to say it out loud. She told him that she
had bought a new bedroom suite for him to have when he came home. Groomer
did not think that conversation was appropriate because it was not a certainty
that he would be going home; plus, it confused him, caused him to be more
homesick, and resulted in behavior problems at school. Groomer missed only
two or three visits from October through the time of trial, and during that time,
O.E.W.-K. did not say that he wanted to go home until the day before trial when
he was encouraged by others to talk about it.
Ms. Johnson told Groomer that she and Mother would be bringing O.E.W.-
K.‘s lunches to the visits, but after about three weeks, Ms. Johnson called and
asked CPS to have the foster mom provide O.E.W.-K.‘s lunches because it was
inconvenient for Ms. Johnson to provide them. However, during Groomer‘s time
as O.E.W.-K.‘s caseworker, she saw that Mother and Ms. Johnson brought
Christmas gifts, socks, and underwear.
Ms. Johnson often fell asleep during visits. Groomer saw Ms. Johnson eat
four glazed donuts and drink a non-diet soda during a visit, despite her diabetes.
O.E.W.-K. was excited to see his great uncle Jamie during his visits.
O.E.W.-K. told him that he knew he wanted him to come home. Groomer noted
that there appeared to be a bond between O.E.W.-K. and Jamie.
26
17. Visits Observed by CASA Volunteer
Marla Bratton, a CASA volunteer, testified that during the twenty visits that
she had observed, she saw Mother at all but one visit, Ms. Johnson at about
eight or ten visits, and Jamie at two visits.12 Bratton said that Mother‘s mood
fluctuated and that she sometimes talked about things that were beyond O.E.W.-
K.‘s understanding, but Bratton could see that Mother loved O.E.W.-K. even if
she was not always appropriate with him. Bratton noted that when O.E.W.-K.
and Mother were alone, he shared his lunch with Mother, and sometimes he
stood in front of her and moved his hands in circles like he was nervous. When
Mother and Ms. Johnson were present, O.E.W.-K. wanted to hug more, sat down
rather than stood, and tried to sit in Ms. Johnson‘s lap. Ms. Johnson was warm
and friendly with O.E.W.-K., telling him stories, hugging him, and telling him that
she loved him. Ms. Johnson acted as a buffer between O.E.W.-K. and Mother.
E. Mother’s Psychological Evaluation
Dr. Nichelle Wiggins, a licensed clinical psychologist, testified that she
conducted a psychological evaluation on Mother on September 17, 2009.
Mother called the morning of the evaluation and was very upset because she
could not find the office; she was short tempered and sharp in her tone of voice
toward Wiggins. An older gentleman who drove Mother to the evaluation got on
12
Bratton testified that in addition to observing visits, she had visited with
O.E.W.-K. in his foster home, had talked to O.E.W.-K.‘s teachers, and had talked
to Dr. DeYoung. O.E.W.-K.‘s therapist.
27
the phone and eventually brought Mother to the office. Mother said that she did
not know the man that had brought her to the evaluation and had just met him
that morning. He sat down in the waiting room, while Dr. Wiggins dealt with
Mother, who was agitated. In the process, Mother asked if she could take the
man home and then come back. Dr. Wiggins asked Mother if she was
comfortable with that because Dr. Wiggins had planned to ask the man to leave.
Dr. Wiggins was concerned that Mother had picked up a strange man, but
Mother was not concerned ―in the least‖ because she said that she had Jesus,
―And what me and Jesus can‘t handle, then me and my Smith & Wesson can.‖ 13
Mother left and returned without the man thirty minutes later. Dr. Wiggins‘s initial
impression of Mother was that she was in a manic state. Mother‘s moods went
up and down, so Dr. Wiggins knew that she was dealing with a person who was
emotionally fragile, who was hurting, who had been traumatized, and who was
scared.
Mother had a very chaotic childhood. She was physically abused by Ms.
Johnson and her mother and had lived with Ms. Johnson off and on throughout
her life. CPS became involved when Mother‘s little brother died. CPS re-entered
Mother‘s life when she was twelve because her caregivers––Ms. Johnson, her
13
Mother said that her Smith & Wesson was in her car. Dr. Wiggins‘s
recommendations stated that Mother would not comment on whether the gun
was registered and that ―this should be followed up. Due to her aggressive
nature, a gun or any type of weapon is not advisable for [Mother] to maintain in
her possession.‖
28
mother, and her uncle––used drugs and alcohol. Mother said that Ms. Johnson
had used crack cocaine but had been clean for about ten years.
Mother completed the tenth grade and then quit because she ―had better
shi[-] to do.‖ She said that she regretted her decision to quit school and was
going to try to obtain a GED.
Mother said that she started smoking marihuana when she was twelve and
would have continued to smoke if not for CPS. Mother said that marihuana
helped calm her down. Mother did not believe that there was anything wrong
with smoking marihuana. Mother said that she had tried to limit her smoking of
marihuana to outside while O.E.W.-K. was riding his bicycle, but she admitted
that there were times when she had smoked it inside the house while he was in
bed in the room next to hers. She said that she did not smoke marihuana in front
of him.14 Mother said that O.E.W.-K. knew that she smoked marihuana and that
he knew that it helped her stay calm. Mother said that O.E.W.-K. would say, ―[A]t
least my mommy doesn‘t smoke crack.‖ She told Dr. Wiggins that she had last
used marihuana in June 2009.
Mother started using crack cocaine when she was nineteen and continued
using until she was about twenty-four (when O.E.W.-K. was four). She still had
some ―crack dreams‖ but claimed that she was no longer using. Mother was
arrested for selling crack cocaine to an undercover officer in Washington in
14
Mother said that she had never blown marihuana smoke in O.E.W.-K.‘s
face but that she had seen someone blow marihuana smoke in a baby‘s face.
29
1999.15 Mother said that selling crack cocaine was part of her lifestyle back then
and was one of the ways that she had supported her habit. Mother said that she
had left Washington and had moved to Texas so that she could get away from
―that environment and the temptations.‖ Mother said that she knew that she
could not take care of O.E.W.-K. when she was using crack cocaine, so she
asked Ms. Johnson to watch OE.W.K. when she was active in her crack cocaine
addiction. Mother left O.E.W.-K. with Jamie for nine months while she was using
crack cocaine. Mother indicated that she had not used crack cocaine for about
three years.
Dr. Wiggins testified that in her opinion, Mother was experiencing crack
dreams because she was missing O.E.W.-K. and wanted to get away from the
pain like she had when she smoked crack cocaine. Dr. Wiggins asked Mother if
she had ever gone to a Narcotics Anonymous meeting, and her answer was,
―No. For what?‖
Mother went to jail for trespassing in 2006 and had spent time in a
residential treatment center after running away from home as a juvenile.
Mother said that she had been a member of the Hoova Crips gang. But
after she gave birth to O.E.W.-K., she put aside her gang lifestyle and no longer
associated with the gang.
15
The trial court admitted into evidence a copy of a judgment from the
State of Washington in which Mother was found guilty of the crime of conspiracy
to deliver cocaine on October 3, 2000.
30
At the time of the evaluation, Mother said that she was living with Ms.
Johnson and her grandfather who was not her biological grandfather.16 Mother
testified that Ms. Johnson had fibromyalgia, diabetes, and mixed tissue disease
and was on a number of different pain medications. Mother moved from
Washington to Texas to help take care of Ms. Johnson, who was not in good
health, and to get away from the environment where she had been using drugs.
Mother said that she has a great deal of love for Ms. Johnson, but that she
prayed every week that Ms. Johnson would die because she got on her nerves
and irritated her, but that she could not imagine life without her. Mother believed
that Ms. Johnson was dying because of her medical issues.
Mother described Mr. Johnson as the ―baby raper‖ and said that he raped
her and her mother. Mother said that Mr. Johnson began abusing her when she
was about nine years old and stopped two days shy of her sixteenth birthday
after she put a knife to his private area and told him that if he wanted to keep it,
he had to keep his hands off her. When Mother was nine, she told Ms. Johnson
about the abuse, but Ms. Johnson did not take any action because she was on
crack cocaine and Mr. Johnson was her supplier. Mother said that Mr. Johnson
had admitted to abusing her mother.
16
Mother said that Ms. Johnson had been married nine times.
31
Mother also said that the payee on her disability checks is the ―baby
raper.‖17 Dr. Wiggins asked Mother if having Mr. Johnson as the payee on her
disability checks put him in a position of control over her; Mother said that she
spoke to him only once a month when she needed money and that even though
he had done bad things to her, he had some redeeming qualities like teaching
her to read and not taking advantage of her financially.
Mother said that her support system consisted of ―God, me, myself, and I.‖
The only people that Mother trusted 100% were herself and God.
Mother said that Jean K. is O.E.W.-K.‘s father. She said that they fought
with each other; they cursed at each other and slapped one another.18
Mother referred to her son as ―Daddy‖ nine out of ten times. Dr. Wiggins
said that it sends a ―very confusing message‖ to a child who does not have a
daddy in his life to call him that. Dr. Wiggins said that with Mother having gone
through her own abuse, she could be projecting some of her own issues onto
O.E.W.-K.
Mother wanted O.E.W.-K. to sleep with her when she had a bad dream
and would go and get him ―to make sure she could protect him.‖ Mother said that
she had limits on when O.E.W.-K. could not sleep with her, such as when she
was on her menstrual cycle and when she wanted to watch television and felt
17
Mother said that she was unemployed and had received Social Security
benefits since she was five years old.
18
Mother admitted that it did ―not take much for her to curse people.‖
32
that the show was inappropriate for him. Mother said that O.E.W.-K. slept with
her nine out of every ten nights and that once he turned eight, he would be too
old to sleep with her. Dr. Wiggins testified that it could be harmful for Mother to
sleep in the same bed every night with her six-year-old son because it does not
teach the child boundaries.19 Dr. Wiggins said that O.E.W.-K. might pick up
Mother‘s fears and anxieties and start to develop an enmeshed relationship with
Mother because there was no boundary of where the child started and ended
and where the parent started and ended. For example, O.E.W.-K. tried to defend
Mother when the monitor interrupted a visit due to Mother‘s behavior.20
Mother told Dr. Wiggins that people thought she was crazy and that was
probably why she was receiving her disability check. Mother also told Dr.
Wiggins that she had been diagnosed with bipolar disorder and had been
prescribed Depakote at ages thirteen, fifteen, and seventeen but that she had
refused to take the medication because she believed that it could poison her
body. She had seen television commercials with attorneys telling people to call a
phone number if they had taken certain medications that had been found to be
harmful; Mother was afraid that would be the case with Depakote. Mother said
19
However, Dr. Wiggins also said that it was not unusual for a five-year-old
to sleep with his parents. Dr. Wiggins clarified that she was not as concerned
that O.E.W.-K. was sleeping in the same bed as Mother as why he was sleeping
with her––because Mother would go get him when she had a nightmare.
20
Yet, Mother thought that O.E.W.-K. was too soft at times and needed to
be toughened up with karate classes.
33
that if the doctors were going to put medications in her that poisoned her body,
she might as well use illegal drugs.
Mother admitted that she had cut a girl in the face with a knife because
―the girl kept yapping her mouth.‖ Mother also admitted that she had thoughts of
harming Ms. Johnson and Mr. Johnson. Mother had thought about putting
bleach in Ms. Johnson‘s insulin to harm her approximately one year prior to the
trial. When Mother was sixteen, she had planned to kill Ms. Johnson by lighting
the house on fire because Ms. Johnson was getting on her ―motherf[---]ing
nerves‖; Mother poured lighter fluid around the house and tried to light it, but it
would not burn. Mother told Dr. Wiggins that every time she sees the ―baby
raper,‖ she thinks of killing him21 but does not act on those thoughts because she
does not want to go prison and because she thinks of O.E.W.-K.
Mother admitted to having had suicidal thoughts and to having engaged in
self-mutilation.22 Mother said that she had attempted suicide by overdosing
approximately ten years prior to the trial. Mother had experienced homicidal
thoughts since the attempted homicide when she was sixteen, but she had not
acted on them since then.23 Mother said that she used razor blades to self-
21
Mother purchased a gun the day that she arrived in Texas because she
knew that she was going to be around the ―baby raper.‖
22
Dr. Wiggins testified that it is common for someone with a background of
physical and sexual abuse to self-mutilate.
23
But, Dr. Wiggins also testified that Mother had not had suicidal thoughts
since she felt like she could keep her grandfather from hurting her.
34
mutilate, that she self-mutilated to relieve the stress that was inside her body,
and that the last time she had engaged in that behavior was mid-August 2009.
Mother told Dr. Wiggins that she did not want O.E.W.-K. to self-mutilate.
Mother told Dr. Wiggins that her gun is her ―wife,‖ that she keeps her gun
in the closet, and that O.E.W.-K. saw her unloading it once. She told O.E.W.-K.
that she would ―break his neck‖ if he ever touched it. Mother also stated that she
would not hurt her son and that she had realized that she had inflicted verbal
abuse on O.E.W.-K.
Mother told Dr. Wiggins that she felt that one of O.E.W.-K.‘s teachers did
not respect her because she had asked the teacher not to touch her child, but
O.E.W.-K. came home with a star drawn on his hand by the teacher. Mother said
that the pentagram went against her religion, and so she went to the school and
confronted the teacher in the school auditorium. Mother called the teacher
several names and then choked her. Mother admitted that choking the teacher
was wrong but said that she would do it again ―[i]n a hot second, a New York
minute‖ if the teacher touched O.E.W.-K. again. Mother admitted that she
smothered O.E.W.-K. and was overly protective of him to the point where she did
not want people to touch him, to help wipe his nose, or to hug him unless they
first received her consent. Mother said that she was ―strange about [her] child,‖
that she feared that somebody would hurt him, that she was afraid of what her
reaction would be, and that she would ―catch a case‖ if someone touched him
35
inappropriately.24 Dr. Wiggins was concerned that Mother was so overprotective
that she became violent at the slightest thing regarding O.E.W.-K. Dr. Wiggins
gave Mother some alternatives for handling a situation in which a teacher might
put a sticker on O.E.W.-K., but Dr. Wiggins said that Mother had her own ideas of
what she needed to do to protect her child and that in the moment, she would act
based on what she believed and thought was correct.
Mother said that CPS was involved in her life as a result of false
allegations that she had physically abused O.E.W.-K. Mother admitted that she
had spanked him with a belt because he had been watching television instead of
practicing his numbers. Mother said that she left marks on his legs, that they
were noticed at school, and that CPS was contacted.
Mother was very concerned that O.E.W.-K. was not being well taken care
of in foster care and admitted that she had used profanity in front of O.E.W.-K. at
a visit after a monitor came in and told her not to question O.E.W.-K. about his
clothing. Mother told the monitor, ―You maggot-mouthed b[----].‖ Mother used
profanity throughout the day and told O.E.W.-K. that his clothes looked ―like shit.‖
Dr. Wiggins was not sure if O.E.W.-K. was reacting to the language or more to
the fact that he felt Mother was being attacked; he responded, ―Look. That‘s my
momma. She can say what she wants to say to me.‖
24
Dr. Wiggins said that it is not unusual for a parent who has had a chaotic
childhood to want to protect her own child from having a chaotic childhood.
36
Dr. Wiggins conducted personality testing on Mother and, based on the
results of that testing, had concerns about Mother‘s mental health and
personality traits. Dr. Wiggins said that what stood out most was that Mother had
experienced chronic mental health issues since she was a teenager and had not
been willing to take the necessary steps to bring stability to her emotional
functioning. Dr. Wiggins testified that Mother was ―very illogical, irrational, and
really did not understand the impact of her decision and behaviors on other
people.‖ Dr. Wiggins said that Mother had major frustration issues and could
become very aggressive, so it was important to have very strong boundaries with
her. Dr. Wiggins also testified that Mother had exhibited violent mood swings,
had engaged in self-mutilation, and had abused drugs, which Dr. Wiggins
equated to ―a chronic pattern of mental instability.‖ Dr. Wiggins believed that
Mother needed treatment for her bipolar disorder and for post-traumatic stress
disorder. Dr. Wiggins stated that the chances of Mother‘s relapsing into drug use
was high if she did not receive treatment for her mental health issues and that
relapse chances remained high regardless because Mother had been abusing
substances for a large part of her life.
Dr. Wiggins recommended to CPS that Mother obtain a psychiatric
consultation for medication. Dr. Wiggins believed that there was a possibility that
Mother‘s mood swings and emotions could be controlled by medication and that
she would benefit from participating in MHMR and individual counseling, anger
management, outpatient drug treatment program, Narcotics Anonymous, random
37
drug testing, parenting classes, and family counseling with her son and by
obtaining her GED. Dr. Wiggins was concerned that Mother had expressed a
strong unwillingness to even consider, much less act upon, the recommendations
that were made.25 Mother was willing to talk about things in counseling as long
as it was on her terms because she had a strong need for control, which was not
unusual for someone who had been abused.
Mother told Dr. Wiggins that she was abused by her mother and Ms.
Johnson, and Mother‘s responses indicated that she knew the difference
between a spanking and abuse. Mother had already started taking parenting
classes when she met with Dr. Wiggins and said that she no longer saw a need
to spank O.E.W.-K. because she had learned other ways of effectively
intervening. However, Dr. Wiggins testified that Mother did not have effective
parenting tools in place to take care of O.E.W.-K. emotionally, physically, and
financially. Mother told Dr. Wiggins that she depended heavily on her
grandparents because everything that she and O.E.W.-K. needed was ―right
there.‖ Mother seemed conflicted because she needed her grandparents, but
she did not want to need them. Emotionally, Mother was not in a place to be
able to make good decisions for herself or O.E.W.-K. Dr. Wiggins was
concerned that Mother was using O.E.W.-K. as a comfort, that he was her
reason for living, and that she was losing herself in him, which was not effective
25
Mother was very argumentative; her first response was to say, ―No.‖
38
parenting. Dr. Wiggins said this could create issues in a parent-child
relationship.
With regard to whether Mother could be an active participant in O.E.W.-
K.‘s life, Dr. Wiggins said that she could if certain conditions were met. Dr.
Wiggins testified that she had ―put those recommendations in there‖ to help
Mother establish stability and the ability to parent effectively while unsupervised.
Dr. Wiggins said that if Mother was not able to meet ―those conditions,‖ then she
would be very concerned. Dr. Wiggins said that Mother could participate in
O.E.W.-K.‘s life with supervision if someone set boundaries with her. Dr. Wiggins
admitted that she knew when she wrote her recommendations that the prognosis
was poor that Mother would follow through completely because people like
Mother ―don‘t see people as trying to help them.‖ When asked whether she
thought someone who did everything that CPS asked and then CPS still went
forward with suit to terminate her parental rights would be distrustful of the
system, Dr. Wiggins said that it is a judgment call, but she recommended looking
at whether the person was demonstrating emotional stability, good decision-
making, the ability to live independently, and the ability to participate in services
on her own.
It concerned Dr. Wiggins that a request had been made for O.E.W.-K. to
go back and live in the house with Mother and his grandparents because Mother
believed she needed to have her gun and her knife to be able to protect her son
and because there was a sexual abuse perpetrator in the home. Dr. Wiggins
39
said that Ms. Johnson had failed to protect Mother in this setting. Dr. Wiggins
was also concerned about what would happen if CPS was out of the picture
because the threat of a urinalysis was the only thing keeping Mother from using
marihuana.26 Dr. Wiggins opined that it would be too difficult for Mother to
maintain stability in an environment where she had to constantly see the man
whom she calls the ―baby raper‖ and Ms. Johnson, whom she loved but at times
wished was dead. Dr. Wiggins described the environment as ―a constant state of
conflict and tension and problems.‖ Dr. Wiggins had a great deal of concern
about a child being in an environment that was as closed off from the outside and
as dysfunctional as Mother had described.
Dr. Wiggins said that her interaction with Mother on the day of trial was
much like how Mother had presented on the day of the evaluation: she was
crying one minute, angry the next, and then gave Dr. Wiggins a hug. Mother
made a couple of inappropriate comments to people in the courtroom and acted
socially deficient with her comments.
F. O.E.W.-K.’s Therapy
Dr. Mark DeYoung, a licensed marriage and family therapist, testified that
as of the time of the trial, he had conducted thirty-five therapy sessions with
O.E.W.-K. O.E.W.-K. met with Dr. DeYoung weekly for forty-five minutes to an
hour. Dr. DeYoung also worked with the foster family to help with O.E.W.-K.‘s
26
Mother had said that on a scale from one to ten, the level that she
missed marihuana was a twelve.
40
behavior at school and at home. Dr. DeYoung testified that he was not asked by
TDFPS to work with the biological family.
Early on during the therapy sessions, O.E.W.-K. mentioned that Mr.
Johnson had hurt Mother and Ms. Johnson, but O.E.W.-K. did not elaborate on
this.
Dr. DeYoung understood that O.E.W.-K. had lived with Mother‘s uncle
Jamie in Seattle for two and a half years. O.E.W.-K. did not indicate anything
negative in his relationship with Jamie; O.E.W.-K. was positive in discussing his
great uncle.
On numerous occasions, O.E.W.-K. mentioned that Mother and Ms.
Johnson had yelled and screamed at each other, both when he was at home and
during the visits. Dr. DeYoung said that he was not sure whether Ms. Johnson
would be able to manage situations involving Mother because she had been
present at the home when Mother mistreated O.E.W.-K. and was present at the
visits when yelling and screaming had occurred. Additionally, Dr. DeYoung said
that it can be bad for a child to be in a household where adults argue and raise
their voices.
O.E.W.-K. told Dr. DeYoung about an incident in which he struggled with
his math homework, and Mother spanked him with a belt. However, O.E.W.-K.
said that Mother told him to misbehave in the classroom and to disobey his
teachers.
41
During several of the therapy sessions, O.E.W.-K. shared that Mother had
talked to him about having a gun and about the fact that she would not hesitate
to use it to threaten others; O.E.W.-K. said that was very frightening to him.
O.E.W.-K. also talked about Mother‘s showing him a gun and asking him to touch
it and hold it and said that was also very frightening to him. O.E.W.-K. told Dr.
DeYoung that Mother carried weapons on her at all times.
On November 4, 2009, O.E.W.-K. told Dr. DeYoung that Ms. Johnson told
him that he would be coming home soon and that he was not to tell anyone.
Around the time of the December 3, 2009 session, Mother took O.E.W.-K. to the
bathroom and told him this again. Around the time of the January 6, 2010
session, O.E.W.-K. told Dr. DeYoung that he had lived with an uncle (his great
uncle Jamie) in Seattle and also that Ms. Johnson told him that he was moving to
Seattle to live with his great uncle. O.E.W.-K. said that when Mother and Ms.
Johnson told him where he was going to live, it made him feel like he had
jellybeans in his brain and that he felt all jumbled up. Dr. DeYoung sensed that
O.E.W.-K. was confused. Dr. DeYoung thought that Mother‘s and Ms. Johnson‘s
remarks contributed to O.E.W.-K.‘s overall sense of uncertainty.
During the February 10, 2010 therapy session, O.E.W.-K. drew a picture of
his biological family and said that in the picture, Mother and Ms. Johnson were
screaming and yelling at each other. Also during that session, O.E.W.-K. drew a
picture of his foster family at a restaurant, and he talked about the fun that they
had while they were there.
42
During the March 10, 2010 therapy session, O.E.W.-K. said that Mother
had smoked a pipe and had blown smoke into his nostrils.
Dr. DeYoung saw O.E.W.-K. after visits with Mother and Ms. Johnson, and
he was nervous and anxious, his speech was difficult, he had a hard time
expressing himself, and he visibly shook when he discussed the visits.
Dr. DeYoung‘s primary concern was that all children need a safe place to
be, and O.E.W.-K. ―doesn‘t seem to feel as if being with his mother or his [great-]
grandmother feels safe to him, because he feels nervous when they argue or
fight. He‘s afraid of what might happen. He‘s afraid of being hit again, which is a
phrase he‘s used.‖ Dr. DeYoung did not believe that O.E.W.-K. would benefit by
having family therapy with his biological family because, in Dr. DeYoung‘s
opinion, O.E.W.-K. was traumatized by the simplest of visits at the CPS office.
Dr. DeYoung testified that family therapy sessions have the potential to be
contentious and are more complex than a visit at the CPS office; because the
family was struggling to manage in the CPS office, his concern was that they
would struggle more with managing a family therapy session.
Although Dr. DeYoung testified that O.E.W.-K. could articulate the
distinction between what was truth and what was not and could tell stories and
events in a consistent manner, Dr. DeYoung said that it would be emotionally
traumatic for six-year-old O.E.W.-K. to testify in front of his family about his
feelings.
43
G. Family Testimony at Trial
1. Ms. Johnson’s Testimony
Ms. Johnson testified that she had been married three times. She
admitted that she had used cocaine when she was younger but that she was
sixty-four years old at the time of trial and did not use drugs nor think about them.
She said that she had no idea when she had last used cocaine; she said that
Mother had said it had been seventeen years and that others had said that it had
been ten years. She said that she remembered writing a letter on July 10, 2009
to the court, the lawyers, Channel Four News, and Dr. Phil, but she did not recall
that she had stated in the letter that she had used drugs in 1994. She said that
she had talked to O.E.W.-K., and he knew that drugs were bad.27 She denied
that Mr. Johnson had supplied her with crack cocaine.
Ms. Johnson said that Mother had told her that Mr. Johnson did something
inappropriate to her and then that he did not. Ms. Johnson said that Mother had
done the same thing regarding a young man that had lived in their neighborhood
when they lived in California. Ms. Johnson took the young man to court, he
spent time in jail, and then Mother said that he did not molest her. Thus, Ms.
Johnson did not believe that Mother‘s allegations about Mr. Johnson were true. 28
27
Ms. Johnson said that she never told O.E.W.-K. about marihuana, unless
Mother had it, and then she told him that it was not a good thing.
28
Jamie also testified that he did not believe Mother‘s story that Mr.
Johnson had sexually assaulted her.
44
Ms. Johnson said that Mother ―has her issues,‖ which Ms. Johnson
explained as Mother‘s tendency to teach O.E.W.-K. ―nonsense stuff.‖ Ms.
Johnson said that Mother listened to inappropriate music and that O.E.W.-K.
learned the lyrics, that she did not dress O.E.W.-K. appropriately, and that she
forgot to buy diapers when he was an infant. Because Ms. Johnson loved
O.E.W.-K. with all of her heart and wanted to protect him from mental and
physical abuse, she kept O.E.W.-K. with her while she lived in Washington.
Mother did what she wanted to do, and if she wanted to see O.E.W.-K., she
came by Ms. Johnson‘s house to visit him.
Before Ms. Johnson left Seattle to move to Texas, she set up Mother with
an apartment and gave ―her every single thing that she would need to be a
mother.‖ Ms. Johnson knew that Mother would not be able to take proper care of
O.E.W.-K., but Ms. Johnson still left him with Mother, hoping that she would do
the right thing. Because Mother had custody of O.E.W.-K., Ms. Johnson could
not bring him to Texas. Plus, Ms. Johnson rationalized that Jamie was still in
Washington and that she could call him to check on Mother and O.E.W.-K. In
late June 2006, the police in Washington called Ms. Johnson in Texas and asked
whether there was anyone in Seattle who could take care of O.E.W.-K., and Ms.
Johnson told them Jamie was there. Ms. Johnson learned that law enforcement
had found two-year-old O.E.W.-K. alone in the home that she had set up for him
and Mother. Although Ms. Johnson had never seen Mother use crack cocaine,
Ms. Johnson believed that Mother was using crack cocaine in June 2006.
45
Ms. Johnson did not believe that Mother should hit people. Ms. Johnson
said that Mother could have involved her in the situation at the school and that
she would have assisted Mother with talking to the teachers in an appropriate
manner. Ms. Johnson believed that Mother would obey her; even though she
might ―start talking crazy,‖ she still did what Ms. Johnson asked of her.
Ms. Johnson said that the visits took place every other Tuesday and that
she insisted on seeing O.E.W.-K. because he is her heart. Ms. Johnson said that
O.E.W.-K. was able to communicate his thoughts to her and that she then
directed him in the way that he should go. Ms. Johnson said that during one of
the visits, they did not have much to do because Mother had walked out. Ms.
Johnson asked O.E.W.-K. what he wanted to do, and he requested to hear a
story about ants. Ms. Johnson told O.E.W.-K. a story about a little ant, and the
moral of the story was that he needed to learn forgiveness so that he could
forgive Mother.
During the visit on December 22, 2009, O.E.W.-K. told everyone that he
wanted to come home. Ms. Johnson told him that he needed to tell his foster
parents that. Ms. Johnson said that during her visit with O.E.W.-K. the day
before the trial, he told Mother that he was going home and would be living with
Ms. Johnson. Ms. Johnson said that O.E.W.-K. told her and his guardian ad
litem that he wanted to go home, and Ms. Johnson told him to pray. Ms.
Johnson said that she had seen CPS lie and that she had seen them stop
O.E.W.-K. from saying that he wanted to go home.
46
At the time of trial, Mother was living in a motel, and Ms. Johnson was
assisting her with her incidental expenses, which totaled fifty or sixty dollars a
month. Ms. Johnson said that Mr. Johnson‘s money pays for Mother‘s motel
room.29
Ms. Johnson said that she gave Mother an opportunity to take care of
O.E.W.-K. on her own and that Mother promised that she would care for O.E.W.-
K., but did not. In Ms. Johnson‘s opinion, Mother ―is not a suitable parent, and
she‘s done all the things that I‘ve seen, including that picture [showing a bruise
on O.E.W.-K.‘s face] . . . . [I]t broke my heart, because [O.E.W.-K.] doesn‘t need
to be hit.‖30 Ms. Johnson said that she would no longer allow Mother and
O.E.W.-K. to live with her at the same time, that she had to choose between
them, and that she chose O.E.W.-K. Ms. Johnson believed that O.E.W.-K.
should be with her and Jamie.31
29
Ms. Johnson testified that Mother received approximately $650 per
month in disability.
30
Prior to that statement, Ms. Johnson had testified that she had not seen
bruises on O.E.W.-K. from Mother and that she had never seen Mother hit
O.E.W.-K. on the head.
31
Ms. Johnson admitted that to control her medical conditions, she took ten
pills a day, including propranolol, hydrochlorothiazide, glucophage, insulin, and
medicine to quit smoking. However, Ms. Johnson believed that she could take
better care of O.E.W.-K. now that she was in Texas because her osteoarthritis
had improved from being in the warmer climate.
47
2. Jamie’s Testimony
Jamie Johnson, Mother‘s uncle, testified that he had raised O.E.W.-K. from
the time he was about two years old until he was about five and a half. Jamie did
not see Mother using drugs during that time but said that Mother was ―going
through some issues‖ and was unable to care for O.E.W.-K. emotionally and
financially. Jamie potty-trained O.E.W.-K. and enrolled him in private school, and
he did well in school while he lived with Jamie. Jamie said that no referrals were
made when O.E.W.-K. lived with him in Washington. During that time, Jamie
developed a significant bond with O.E.W.-K.
Jamie let Mother move O.E.W.-K. from Washington to Texas because she
was coming to live with Ms. Johnson and because he thought she would be able
to help Mother with O.E.W.-K. Jamie testified that he had realized that he should
have kept O.E.W.-K. himself.
Jamie said that he had moved to Texas to help Ms. Johnson and to help
with O.E.W.-K.‘s situation. At the time of trial, he was living with Ms. Johnson.
He said that O.E.W.-K. had his own room at Ms. Johnson‘s house before he was
removed and that even with Jamie, his wife, and his child, there was still plenty of
room for O.E.W.-K. Jamie agreed with the home assessment‘s statement that
the family had demonstrated its ability to meet all of O.E.W.-K.‘s financial needs.
Jamie admitted that he had a past criminal record but said that none of the
charges were drug related. Jamie was convicted in 2000 in Washington for the
misdemeanor of domestic violence. Jamie said that he pleaded no contest to the
48
charge, but he said that he merely took his old girlfriend‘s car. Jamie was
convicted of two counts of felony burglary of a habitation for going into the house
of his mother‘s previous boyfriend or fiancé. He was charged with driving without
a license in 2001. Jamie was not aware whether his wife had been convicted of
the misdemeanor of drug paraphernalia in March 2008 or whether she had been
found guilty of a Class C felony in 2005 for controlled substance manufacturing,
delivery, or possession. When asked whether his wife had any problems with
drug use, he said that he did not know of any.
Jamie testified that if O.E.W.-K. was placed back in Ms. Johnson‘s home
where Jamie lived, he would use all of his financial abilities to help support
O.E.W.-K. and would also protect him in any way possible, including protecting
him from Mother.
3. Mother’s Testimony
Mother was incarcerated only once and that was when she was eighteen.
Mother explained that her two convictions that contained the initials ―VUCSA‖
stood for ―Violation of the Uniform Controlled Substance Act.‖ One of the
convictions was for cocaine, and the other one was ―VUCSA Burn.‖ Mother said
that she was not sure what ―Burn‖ stood for but that it could mean that the drugs
were tested and did not contain enough to test. Mother was found guilty of that
charge.
Mother did not remember the last time that she had used crack cocaine;
she had not used it since she moved to Texas. Mother no longer smoked
49
marihuana. She admitted that she used to smoke marihuana but said that
O.E.W.-K. never saw her smoke marihuana and that she never blew smoke in
his mouth or nose. When Mother was asked whether she had ever seen anyone
blow smoke in O.E.W.-K.‘s mouth or nose, she said, ―I haven‘t seen anybody get
that close to my child without having to deal with me.‖ Mother said that Dr.
Wiggins‘s report was not accurate if it stated that she told her that she used to
get high in her room at Ms. Johnson‘s house. Mother said that the only thing she
has done in her room is drink beer and that she is twenty-eight years old, which
is old enough to drink. Mother also said that she did not smoke a marihuana
cigarette while O.E.W.-K. was in the car parked outside the school. Mother said,
First off, when I did smoke marihuana, I never roll[ed] joints. That‘s
point number one. I roll my own cigarettes, and they‘re special
blend, so that‘s probably the smell he [the physical education aide]
smelled. Second of all, I‘m not allowed to smoke marihuana in my
grandmother‘s car, I wouldn‘t have the keys right now. I don‘t do
drugs in my grandmother‘s car.
Mother stopped socializing with her gang associates when she became a
mother.
Mother said that she left O.E.W.-K. alone when he was two and a half
years old and went next door to her girlfriend‘s house. Mother said that she now
knows that was not appropriate. Mother said that she was not using crack or
ecstasy during those days but that she was smoking marihuana. Mother said
that she gave O.E.W.-K. to her uncle (Jamie) because she knew that she was
not being the best parent that she could be. Mother said that it is not true that
50
Jamie had O.E.W.-K. for two and a half years. Mother said that O.E.W.-K. lived
with her until he was three; that she and Ms. Johnson paid for his fourth birthday,
which he celebrated with Jamie; and that by age five, he was back with her
because she and Ms. Johnson paid for his fifth and sixth birthday parties.
Mother testified that O.E.W.-K. was removed from her care on May 20,
2009, because she had spanked him with a belt. Since then, Mother had learned
in her parenting class that all physical contact with a child is inappropriate.
Mother said that she had learned that she could take a child‘s toys, put a six-
year-old child in a six-minute timeout, explain why the child was being put there,
and ―then you go on from there.‖ Mother said that she would never again spank
O.E.W.-K. with a belt and that she regretted spanking O.E.W.-K. with a belt, now
that she knows that it is wrong.
Mother agreed that the June 16, 2009 service plan that she had signed
required her to take a psychological evaluation and a psychosocial assessment,
to participate in individual counseling32 and parenting classes, to pass the
psychiatric evaluation, to complete random drug testing, to refrain from physical
discipline, to refrain from bringing any type of weapons to the CPS office, to
maintain safe and stable housing, and to complete a drug assessment. Mother
said that she had completed a psychosocial assessment, a psychological
32
Mother said that she was never offered family counseling with O.E.W.-K.
even though she brought it up with Letz.
51
evaluation, parenting classes, and anger management, as well as ten of twelve
individual counseling sessions.33 Mother also said that she took five drug tests.
Mother agreed that in a very short time frame she can go from being angry
to being sad to being happy; Mother said that it depends on how she is provoked.
Mother said that at her MHMR appointment, she had been diagnosed as bipolar
and was prescribed medication but had not taken it. Mother said that she could
understand why her not taking medication might cause ―you people‖ concern.
Mother said that she had a follow-up appointment coming up with MHMR on April
10, 2010 (after the trial). Mother said that her initial appointment was in
November and that they scheduled her follow-up for a Tuesday, so she had to
reschedule because that was the day that she visited O.E.W.-K. Mother said that
she would still go to the appointment even if the court decided to terminate her
parental rights and that if MHMR recommended medication, she would give it a
try. However, Mother said that she feared medication because over the years,
she had put enough poison in her body ―to get everybody in this [court]room
high‖ and feared that medication would continue to poison her body.
Mother said that she could not remember when she had last self-mutilated,
but the last time she had thought about doing it was when Letz was her case
33
Mother said that she had completed her psychological evaluation on
September 24, 2009, and had completed the rest of her service plan tasks prior
to September 21, 2009. Mother said that she started working her service plan as
soon as she received it in June 2009 and that she did not complete the
psychiatric evaluation until November because that is the date that she was
given when she called to schedule it in June.
52
worker. Mother said that it had been ten years, if not longer, since she had
attempted suicide.
With regard to the assault on O.E.W.-K.‘s teacher, Mother said that the
teacher refused to press charges. On the first day of school, Mother and Ms.
Johnson told O.E.W.-K.‘s teacher ―how apprehensive and protective and
somewhat smothering‖ Mother was about O.E.W.-K. and that she did not want
the teacher to touch him. Mother told the teacher, ―[Y]our job is to teach him his
ABC‘s and 1-2-3‘s, and the way I give him to you is please, that‘s how I want him
back.‖34 Mother said that the teacher nodded that she understood. One day the
teacher put a star on O.E.W.-K.‘s hand, and Mother said that it was against her
religion to put anything on the hand or forehead. Mother admitted that she
choked O.E.W.-K.‘s teacher and that it was ―wrong to put your hands on people.‖
Mother said that Mr. Johnson is the payee for her Social Security disability
checks because that was the way Ms. Johnson set it up when Mother was a
child. Mother received $664 per month in disability benefits.
When Mother lived with Ms. Johnson, she paid $300 per month for rent,
utilities, and cable. Mother did some non-excruciating chores like emptying the
dishwasher, vacuuming the floor, and occasionally O.E.W.-K.‘s laundry. Mother
testified that as of the time of trial, she was not living with Ms. Johnson. When
Mother was asked about her tendency to move back in with Ms. Johnson after
34
Mother said that she had helped O.E.W.-K. with his homework and that
he had received a ―plus‖ or an ―excellent‖ in all his classes.
53
having moved out, Mother said, ―Oh, I‘m going home,‖ indicating that she would
move back in with Ms. Johnson at some point in the future.
Mother said that it was not necessarily true that O.E.W.-K. was
traumatized by her visits at CPS. Mother said that she had never told O.E.W.-K.
that his father was worthless or ―a piece of shit,‖ but she had called him a ―sorry-
ass‖ in front of O.E.W.-K. Mother knew that others probably thought that was not
appropriate to tell O.E.W.-K. that, but she said that she would never lie to
O.E.W.-K. if he asked her about his father.
Mother said that she could see why there were concerns about her
parenting O.E.W.-K. She said that there were problems before and that she was
sure that there would be problems in the future because there were always
problems but that she loved O.E.W.-K. more than she ever thought she could
and that she had left her home so that he could come home.
H. Recommendations
Letz, the first caseworker, did not feel that returning O.E.W.-K. to his home
would have been safe for him.
Bratton, the CASA volunteer, testified that she knew that the family loved
O.E.W.-K. very much, but she was concerned about his safety and was not sure
that they would be able to protect him.
Groomer believed that it was in O.E.W.-K.‘s best interest to have Mother‘s
parental rights terminated.
Ms. Johnson believed that O.E.W.-K. should be with her and Jamie.
54
Mother believed that it was not in O.E.W.-K.‘s best interest to be placed
outside of their family because they would teach him his identity and values.
Mother therefore wanted O.E.W.-K. to live with Ms. Johnson if the trial court
terminated Mother‘s parental rights.
I. Trial Court=s Disposition
After hearing the above evidence, the trial court signed a judgment
terminating Mother=s parental rights to O.E.W.-K. The trial court found by clear
and convincing evidence that Mother had knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endangered the physical
or emotional well-being of the child; that Mother had engaged in conduct or
knowingly placed the child with persons who engaged in conduct which
endangered the physical or emotional well-being of the child; and that termination
of the parent-child relationship with Mother was in the child‘s best interest. This
appeal followed.
III. LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE OF CONDUCT AND
ENVIRONMENTAL ENDANGERMENT TO SUPPORT TERMINATION ORDER
In her first through fourth issues, Mother argues that there is legally and
factually insufficient evidence to establish the termination grounds under section
161.001(1)(D) and (E).35 Specifically, Mother argues that there was insufficient
35
In her briefing challenging the legal and factual sufficiency of the
evidence to support the trial court‘s (D) and (E) endangerment findings, Mother
also argues that the trial court erroneously admitted testimony from Hill—that
O.E.W.-K. told Hill that Mother had made the bruise on him—without making the
proper prerequisite findings and that the trial court erroneously admitted
testimony from Hill (although such testimony actually came from Dr. DeYoung)
55
evidence to establish physical abuse, that Mother worked her service plan, and
that she reformed her life out of love for her son.
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.‖ 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) (Vernon 2008); Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
regarding O.E.W.-K.‘s seeing weapons in his home. Because Mother did not
raise these ―issues‖ in her statement of points, we are prohibited from addressing
them in this appeal. See In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010); In re
K.B., No. 02-09-00441-CV, 2010 WL 4028107, at *15 (Tex. App.—Fort Worth
Oct. 14, 2010, no pet.) (mem. op.); see also Cravens v. City of Amarillo, 309
S.W.2d 903, 906–07 (Tex. Civ. App.––Amarillo, writ dism‘d) (overruling
complaints and charges that were not presented in a separate point of error and
that were also not supported by the record), cert. denied, 358 U.S. 882 (1958).
56
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp.
2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon 2008).
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 (Vernon 2008). Due process demands this
heightened standard because termination results in permanent, irrevocable
changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002);
see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for
termination and modification).
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
57
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,
574. And even when credibility issues appear in 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 judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that Mother
violated section 161.001(1)(D) or (E) and that the termination of the parent-child
relationship would be in the best interest of the child. 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
58
belief or conviction in the truth of its finding, then the evidence is factually
insufficient. H.R.M., 209 S.W.3d at 108.
B. Law on Endangerment
Endangerment means to expose to loss or injury, to jeopardize. 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). To prove
endangerment under subsection (D), TDFPS had to prove that Mother knowingly
placed or allowed O.E.W.-K. to remain in conditions or surroundings that
endangered his physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(1)(D); In re J.A.J., 225 S.W.3d 621, 625 (Tex. App.—Houston [14th
Dist.] 2006) (op. on reh‘g), judgm’t aff’d in part, rev’d in part by 243 S.W.3d 611
(Tex. 2007). It focuses on the suitability of the child‘s living conditions. J.A.J.,
225 S.W.3d at 624. Thus, under (D), it must be the environment itself that
causes the child‘s physical or emotional well-being to be endangered, not the
parent‘s conduct. Id.
Under (E), the relevant inquiry is whether evidence exists that the
endangerment of the child‘s physical well-being was the direct result of Mother‘s
conduct, including acts, omissions, or failures to act. See J.T.G., 121 S.W.3d at
125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally, termination
under (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.
J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It is not
59
necessary, however, that the parent‘s conduct be directed at the child or that the
child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125.
The specific danger to the child‘s well-being may be inferred from parental
misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d
732, 738 (Tex. App.—Fort Worth 2004, pet. denied). 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. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). A parent‘s mental instability and attempt to
commit suicide may contribute to a finding that the parent engaged in a course of
conduct that endangered a child‘s physical or emotional well-being. J.T.G., 121
S.W.3d at 126; see In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth
1984, no writ) (mental conditions and suicide attempts of parent were factors in
considering whether parent engaged in conduct that endangered emotional well-
being of child). To determine whether termination is necessary, courts may look
to parental conduct occurring both before and after the child‘s birth. In re D.M.,
58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
C. Evidence Is Legally and Factually Sufficient to Support
Termination Order
In determining whether the evidence is legally and factually sufficient to
support termination of Mother‘s parental rights pursuant to (D) or (E), we look at
whether Mother (1) knowingly placed or knowingly allowed O.E.W.-K. to remain
60
in conditions or surroundings that endangered his physical or emotional well-
being or (2) engaged in conduct or knowingly placed O.E.W.-K. with persons who
engaged in conduct that endangered his physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(1)(D), (E). The Department‘s brief contains a
combined legal and factual sufficiency analysis focusing on five acts or omissions
by Mother that it contends support termination of Mother‘s rights under (D) and
(E): that Mother‘s physical violence against O.E.W.-K. was endangering; that the
violent environment created by Mother was endangering to O.E.W.-K.; that
Mother‘s drug use was endangering; that Mother endangered O.E.W.-K. by her
refusal to accept treatment for her mental illnesses; and that Mother endangered
O.E.W.-K. by exposing him to Mr. Johnson and Ms. Johnson. We will examine
all of the evidence in the record, focusing on these allegations.
Jaco witnessed Mother slap O.E.W.-K. on the head after he asked her to
get something out of the refrigerator; the slap was enough to make O.E.W.-K.
whimper a little. Jaco also saw bruises on O.E.W.-K.‘s face, right arm, hands,
and his right leg, which Mother admitted causing by striking O.E.W.-K. with a
belt. Approximately two weeks later, Jaco received a call from Ms. Johnson that
Mother had become upset when O.E.W.-K. claimed to be sick, so Mother had
grabbed him and pulled him. Ms. Johnson was fearful that Mother was ―really
going to hurt him.‖ Jaco heard Mother yelling in the background: ―No one is
going to tell me I can‘t hit my son. If I want to beat him, I‘ll beat him, and there is
nothing you can do about it.‖ Ms. Johnson later tried to say that O.E.W.-K. had
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caused all of the bruises on his body; Ms. Johnson said that she would tell that
story to get O.E.W.-K. back. But at trial, Ms. Johnson testified that Mother
caused the bruises that she had seen in a picture of O.E.W.-K. During one of the
visits after O.E.W.-K. was removed from Mother‘s care, Mother stood in the hall
and threw a ball as hard as she could at O.E.W.-K. while he was sitting on the
couch. Thus, evidence exists supporting an inference that Mother committed
physical violence against O.E.W.-K. on multiple occasions and that her conduct
physically endangered O.E.W.-K. Cf. In re J.C., 151 S.W.3d 284, 288 (Tex.
App.—Texarkana 2004, no pet.) (stating that father was indicted for injury to a
child after beating child with a belt and leaving bruises on child from his head to
his toes).
Moreover, the record reflects that while Mother and O.E.W.-K. lived with
Ms. Johnson and Mr. Johnson, Mother and Ms. Johnson screamed at each
other, and O.E.W.-K. drew a picture of this while he was in therapy. Mother hit
Ms. Johnson in the shoulder after she had undergone shoulder surgery. Mother
and O.E.W.-K.‘s father had engaged in domestic violence. Mother threatened
and assaulted O.E.W.-K.‘s teacher and carried weapons to his school. Mother
had shown her gun to O.E.W.-K., made him hold it, and later told him that she
would ―break his neck‖ if he touched it. Mother also admitted that it did not take
much for her to curse and that she cursed frequently. This evidence is some
evidence that Mother‘s conduct directed at others, both within the family and
outside the family, created an environment that endangered O.E.W.-K.‘s
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emotional or physical well-being. See In re C.J., Nos. 14-07-00838-CV, 14-07-
00839-CV, 2008 WL 4447687, at *4 (Tex. App.—Houston [14th Dist.] July 10,
2008, no pet.) (mem. op.) (holding that sufficient evidence existed to support
endangering conduct finding based on appellant‘s history of domestic violence,
verbal altercations and threats, and physically aggressive behavior that required
her to be supervised at all times while in the presence of children).
Mother also had a long history of drug use and had two drug-related
charges on her record. Mother told several people that she had used drugs while
she was pregnant with O.E.W.-K. Mother‘s drug addiction required her to have
others watch her son or to leave him alone. A physical education aide observed
Mother smoking marihuana in her car while O.E.W.-K. was with her. The record
contains other evidence that Mother smoked marihuana in her room, which was
next door to O.E.W.-K.‘s room, although Mother denied this. Mother tested
positive for drugs while she was working her plan and admitted to using in July
2009. O.E.W.-K. knew that Mother smoked marihuana and took up for her,
stating that he was glad that she did not smoke crack. Mother did not believe
that marihuana was bad for her and intimated that she would still be using if she
was not working her CPS service plan because on a scale of one to ten, she
missed marihuana a twelve. This is some evidence that Mother‘s conduct
created an environment that endangered O.E.W.-K.‘s emotional or physical well-
being. See In re J.M., No. 02-08-00259-CV, 2009 WL 112679, at *4–5 (Tex.
App.—Fort Worth Jan. 15, 2009, no pet.) (mem. op.) (holding that mother‘s drug
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use during pregnancy and drug use six to eight months before the termination
trial constituted evidence of endangerment under section 161.001(1)(E)).
Additionally, Mother was diagnosed with bipolar disorder as a teenager
and was prescribed Depakote, but she refused to take any medication for her
mental illness because she feared the medication would poison her. During her
service plan, Mother‘s bipolar disorder diagnosis was confirmed, along with
oppositional/defiant disorder, ADHD, and multiple personality disorder, but she
still was not taking medication at the time of trial. Her mental illness caused her
to experience violent mood fluctuations, and she admitted having thoughts of
suicide and engaging in self-mutilation. Mother said that she often considered
killing Ms. Johnson and Mr. Johnson. This is some evidence that Mother‘s
conduct created an environment that endangered O.E.W.-K.‘s emotional or
physical well-being. See Sawyer v. Tex. Dep’t of Protective & Regulatory Servs.,
No. 03-02-00286-CV, 2003 WL 549216, at *8 (Tex. App.—Austin Feb. 27, 2003,
no pet.) (mem. op.) (stating that fact that appellant had refused treatment for her
mental illness endangered her children).
Furthermore, Mother testified that she had been sexually assaulted for
numerous years by Mr. Johnson and referred to him as the ―baby raper.‖ After
Mother told Ms. Johnson about the sexual abuse, Ms. Johnson did nothing
because she believed Mr. Johnson when he said that he had not touched
Mother, even though he had admitted to molesting Mother‘s mother. Yet, Mother
had moved to Texas and had brought O.E.W.-K. with her to live in a home with
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Mr. Johnson and Ms. Johnson. Ms. Johnson had numerous health conditions
but was forced to care for O.E.W.-K. most of the time because of Mother‘s drug
use and laziness. Mother‘s living situation fluctuated, and she admitted that she
could not go for very long without living with Ms. Johnson. Mother and Ms.
Johnson told O.E.W.-K. that he would be coming home to live in the Johnson
household, and it caused him stress. O.E.W.-K. was afraid of Ms. Johnson
because she had previously hit him. This is some evidence that Mother exposed
O.E.W.-K. to an environment that endangered O.E.W.-K.‘s physical or emotional
well-being. Cf. In re C.L.C., 119 S.W.3d 382, 393 (Tex. App.—Tyler 2003, no
pet.) (stating that ―it is illogical to reason that inappropriate, debauching, unlawful,
or unnatural conduct of persons who live in the home of a child . . . are not
inherently a part of the ‗conditions and surroundings‘ of that place or home‖ and
that this statute—section 161.001(1)(D)—is designed to protect a child from
―precisely such an environment‖).
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 hold that some evidence exists that will support a factfinder‘s
firm conviction or belief that Mother violated subsections (D) and (E). We thus
hold that the evidence is legally sufficient to support termination of Mother‘s
parental rights to O.E.W.-K. under subsections (D) and (E). See Tex. Fam. Code
Ann. § 161.001(1)(D), (E); Jordan v. Dossey, 325 S.W.3d 700, 721–26 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied) (holding that evidence was legally
65
sufficient to support termination under (D) and (E) because mother allowed child
to remain in the care of a person known to be violent, abusive, and a convicted
sex offender; endangered child as a fetus; lived an unstable, transient lifestyle;
and was currently diagnosed with bipolar and other disorders and was not taking
her medication); R.W., 129 S.W.3d at 739–44 (holding that evidence was legally
sufficient to support termination under (E) because father had a history of
substance abuse, mental instability, and criminal history); Sawyer, 2003 WL
549216, at *9 (holding that evidence was legally sufficient to support termination
under (D) and (E) because mother had a history of mental illness, housing and
financial instability, relationships with violent men, and drug use). We overrule
Mother‘s first and third issues.
Viewing all of the evidence in a neutral light, the volume of evidence—set
forth extensively above—that a reasonable factfinder could have credited in favor
of subsections (D) and (E) findings is so significant that a factfinder could
reasonably have formed a firm conviction or belief of the truth of the allegations
that Mother had violated subsections (D) and (E). See H.R.M., 209 S.W.3d at
108; C.H., 89 S.W.3d at 28. We therefore hold that the evidence is factually
sufficient to support termination of Mother‘s parental rights to O.E.W.-K. under
subsections (D) and (E). See Tex. Fam. Code Ann. § 161.001(1)(D), (E);
Jordan, 325 S.W.3d at 721–26 (holding that evidence was factually sufficient to
support termination under (D) and (E) because mother allowed child to remain in
the care of a person known to be violent, abusive, and a convicted sex offender;
66
endangered child as a fetus; lived an unstable, transient lifestyle; and was
currently diagnosed with bipolar and other disorders and was not taking her
medication); R.W., 129 S.W.3d at 739–44 (holding that evidence was factually
sufficient to support termination under (E) because father had a history of
substance abuse, mental instability, and criminal history); In re S.A., No. 02-06-
00253-CV, 2007 WL 1441014, at *10–11 (Tex. App.—Fort Worth May 17, 2007,
no pet.) (mem. op.) (holding evidence factually sufficient to support termination
under (D) and (E) because mother suffered from bipolar disorder; had a history of
drug use, including during a pregnancy; had a pattern of uncontrolled anger;
showed instability in her living arrangements; and had a criminal history);
Sawyer, 2003 WL 549216, at *9 (holding that evidence was factually sufficient to
support termination under (D) and (E) because mother had a history of mental
illness, housing and financial instability, relationships with violent men, and drug
use). We overrule Mother‘s second and fourth issues.
IV. TERMINATION WAS IN O.E.W.-K.’S BEST INTEREST
In her fifth and sixth issues, Mother argues that the evidence is legally and
factually insufficient to support the trial court‘s finding that termination of the
parent-child relationship was in O.E.W.-K.‘s best interest. Specifically, Mother
argues that it was not in O.E.W.-K.‘s best interest to terminate her parental rights
to him because she had completed ―the array of assistance programs suggested
by TDFPS,‖ had shown her ability to be free of drugs, and had shown her desire
and ability to reform herself. The record, however, reveals otherwise.
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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) (Vernon 2008).
The following factors should be considered in evaluating the parent‘s willingness
and ability to provide the child with a safe environment:
(1) the child‘s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm
to the child;
(4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department or other
agency;
(5) whether the child is fearful of living in or returning to the
child‘s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child‘s parents, other family members, or
others who have access to the child‘s home;
(7) whether there is a history of abusive or assaultive conduct
by the child‘s family or others who have access to the child‘s home;
(8) whether there is a history of substance abuse by the child‘s
family or others who have access to the child‘s home;
(9) whether the perpetrator of the harm to the child is
identified;
(10) the willingness and ability of the child‘s family to seek out,
accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency‘s close supervision;
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(11) the willingness and ability of the child‘s family to effect
positive environmental and personal changes within a reasonable
period of time;
(12) whether the child‘s family demonstrates adequate
parenting skills, including providing the child and other children
under the family‘s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline
consistent with the child‘s physical and psychological
development;
(C) guidance and supervision consistent with the child‘s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child‘s needs and
capabilities; and
(13) whether an adequate social support system consisting of
an extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the child include (A) the desires of the
child, (B) the emotional and physical needs of the child now and in the future, (C)
the emotional and physical danger to the child now and in the future, (D) the
parental abilities of the individuals seeking custody, (E) the programs available to
assist these individuals to promote the best interest of the child, (F) the plans for
the child by these individuals or by the agency seeking custody, (G) the stability
69
of the home or proposed placement, (H) the acts or omissions of the parent
which may indicate that the existing parent-child relationship is not a proper one,
and (I) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
In analyzing the section 263.307(b) factors, the record reveals that O.E.W.-
K. was six and a half at the time of trial, was repeating kindergarten, had no
physical issues, but did exhibit some behavioral problems. There were fifty-eight
CPS allegations against Mother in Washington, and O.E.W.-K. was living with
foster parents at the time of the trial. The frequency and circumstances
surrounding the harm caused to O.E.W.-K. are detailed thoroughly above,
including additional harm imposed on him by Mother and Ms. Johnson during
their visits. Although O.E.W.-K. mentioned during a few of the visits that he
wanted to go home, the behavior that he exhibited around Mother and Ms.
Johnson reflected that he was afraid of them and did not feel comfortable when
they told him that he would be going home to live with them. The results of
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Mother‘s psychological evaluation with Dr. Wiggins is set forth in detail above, as
is the history of abusive and assaultive conduct by Mother and others in the
home, Mother‘s drug use, and the perpetrators of the harm to O.E.W.-K. The
record demonstrates that Mother was initially adamant that she would not work
any services but eventually completed some of them, though she was
uncooperative unless her caseworker ―put her between a rock and a hard place.‖
O.E.W.-K.‘s family failed to effect positive environmental and personal changes
while the suit was pending as demonstrated during the visits when Mother and
Ms. Johnson were ―disruptive to each other‖ and others and when they
interrogated O.E.W.-K. to the point that he wanted to end the visits early. Mother
failed to demonstrate adequate parenting skills before and after O.E.W.-K. was
removed as shown by her willingness to choose drugs over him, calling him
―Daddy,‖ getting him to sleep with her after she had a bad dream, and not
knowing how to appropriately interact with or discipline him. Mother said that her
support system consisted of ―God, me, myself, and I.‖
With regard to the Holley factors, the record reveals that it would have
been too stressful on O.E.W.-K. to testify in front of Mother, but his wishes were
relayed by others and are set forth above. O.E.W.-K. had overcome his speech
difficulties with speech therapy and did not have any other special physical
needs. O.E.W.-K.‘s main emotional need was for a safe environment, which was
lacking when Mother was present. O.E.W.-K. tended to wring his hands and run
to the caseworker to be rescued from Mother and Ms. Johnson during visits.
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Mother refused to take medicine to control her mental illnesses and therefore
posed both an emotional and physical danger to O.E.W.-K. due to her violent
mood swings. Despite completing parenting classes, Mother testified that she
could see why there were concerns about her parenting O.E.W.-K. because
there were problems in the past and because she was sure that there would be
problems in the future. The record did not reveal specific programs that were
available to assist Mother and to promote O.E.W.-K.‘s best interest, other than
the services that were offered to Mother, in which she did not fully participate.
CPS planned to seek adoption of O.E.W.-K. by his current foster family, while
Mother wanted him to live with her or her family. The record demonstrated the
stability of the foster family‘s home environment. If O.E.W.-K. went to live with
Mother, however, the stability of the home would be questionable because
Mother‘s motel room had not been evaluated and because Mother planned to
move back in with Ms. Johnson at some point, which would likely create the
same volatile environment as when O.E.W.-K. was removed. Mother regularly
attended the visits, but it was at those visits where it was most obvious that the
existing parent-child relationship was not a proper one. Furthermore, Mother
provided excuses, which were set forth above, for her failure to complete her
services.
Considering the relevant statutory factors in evaluating Mother‘s
willingness and ability to provide O.E.W.-K. with a safe environment and the
Holley factors, we hold that the evidence is both legally and factually sufficient to
72
support the trial court‘s finding that termination of Mother‘s parental rights to
O.E.W.-K. is in his best interest. See Tex. Fam. Code Ann. § 161.001(2);
Jordan, 325 S.W.3d at 733 (holding evidence legally and factually sufficient to
support the trial court‘s finding that termination of mother‘s parental rights was in
child‘s best interest when most of the best interest factors weighed in favor of
termination); Sawyer, 2003 WL 549216, at *10–11 (holding that evidence was
factually sufficient to support best interest finding because mother‘s history of
homelessness, unemployment, drug use, relationships with violent men, and
refusal to get help for her mental illness did not provide assurance of stability and
permanence). We therefore overrule Mother‘s fifth and sixth issues.36
V. AWARD OF PERMANENT MANAGING CONSERVATORSHIP TO THE DEPARTMENT
In her seventh and eighth issues, Mother argues that the award of
permanent managing conservatorship to the Department should be reversed if
we reverse the trial court‘s termination order. Because we held above that the
trial court did not abuse its discretion by terminating Mother‘s parental rights to
O.E.W.-K. and because we therefore did not reverse the trial court‘s termination
order, we need not reach Mother‘s seventh and eighth issues. See Tex. R. App.
P. 47.1 (stating that appellate court need only address every issue necessary to
final disposition of the appeal).
36
This was not, as Mother contends, a case in which TDFPS simply
preferred another family to care for O.E.W.-K. over Mother and her family; this is
a case in which the evidence supported the termination.
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VI. CONCLUSION
Having overruled every issue necessary to the final disposition of this
appeal, we affirm the trial court‘s judgment terminating Mother‘s parental rights to
O.E.W.-K.4
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: March 31, 2011
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