in the Interest of K.B., a Child ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00441-CV
IN THE INTEREST OF
K.B., A CHILD
------------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION1
------------
I. INTRODUCTION
Appellant Mother appeals from the trial court’s judgment terminating her
parental rights to her son K.B. In four issues, Mother argues that the State’s
pleadings seeking termination are based on a factually and legally void affidavit
of removal; that the evidence is legally and factually insufficient under family
code sections 161.001(1)(D) and (E) to support the judgment; that the State
failed to prove K.B. had been removed from Mother for abuse and neglect under
1
See Tex. R. App. P. 47.4.
section 161.001(1)(O) and, in the alternative, that section 153.007
unconstitutionally shifts the burden of proof from the State to the parent; and that
the evidence is factually insufficient to support the trial court’s finding that
termination of the parent-child relationship is in K.B.’s best interest. We will
affirm.
II. PROCEDURAL BACKGROUND
On August 27, 2008, the State filed its petition, and the trial court signed
an order for protection of K.B. and set a show cause hearing for September 5,
2008. On September 5, 2008, the trial court held a full adversary hearing and
gave Mother limited access to K.B.
The initial service plan filed by CPS stated that the permanency goal was
family reunification, with a concurrent plan of termination/adoption, and that the
projected date for achieving permanency was August 26, 2009. The State filed a
motion for continuance and a motion for extension of the dismissal date, which
the trial court granted.
On July 1, 2009, the trial court signed an ―Agreed Order For Actions
Necessary For Parent To Obtain Return Of Child,‖ listing eight requirements that
Mother needed to complete in order for K.B. to be returned to her. On
September 17, 2009, the State filed its first amended petition, adding additional
termination grounds, upon which it proceeded at trial. At the permanency
hearing held on October 8, 2009, the trial court found that Mother had not
2
demonstrated adequate and appropriate compliance with the service plan and
set the cause for trial. The trial took place on November 25, 2009.
III. TRIAL TESTIMONY
A. Mother’s Testimony
1. Background on How K.B. Came Into CPS Custody
Mother testified that she is the mother of K.B. and that his biological father
is M.N.2 K.B. was born on December 15, 1999; Mother was fourteen years old at
the time. Mother took K.B. to school with her; Mother completed the tenth grade
and then obtained her GED.
K.B. lived with Mother continuously from 1999 to 2006. They lived with
Mother’s grandmother3 from the time of K.B.’s birth until he was one year old.
Then, they moved to the Presbyterian Night Shelter because there were
too many people living in the house and because Mother’s mother had moved
her into the shelter; Mother and K.B. stayed there until K.B. was two years old.
After that, they moved back in with Mother’s grandmother. In 2004, they moved
in with Gregory, a man with whom Mother was involved. Then, Mother rented
her own apartment. After Mother lost her job, she and K.B. moved back in with
her grandmother, and then they moved back in with Gregory.
2
The trial court also terminated M.N.’s parental rights to K.B. However, he
is not a party to this appeal.
3
At various times in the record, Mother appears to refer to this person as
her ―grandmother‖ and as her ―great-grandmother.‖ For consistency, we will use
―grandmother.‖
3
Mother testified that living in Gregory’s household was ―[s]ometimes good,
sometimes bad.‖ When they lived with Gregory, K.B. went to school and did well
there (i.e., there were no parent-teacher conferences), he was well fed and well
nourished, he had plenty of clothes to wear, and he saw the doctor and the
dentist on a regular basis.
Mother said that she did not know that Gregory had a criminal background
when she met him. While Mother and K.B. were living with Gregory, Mother did
not see any crack cocaine in the house. However, Mother suspected that
Gregory was using crack cocaine after an incident involving his daughter
occurred in the middle of May 2006. Mother said that she had gotten Gregory’s
daughter dressed and did not see any bruises on her, and then later that day,
Mother was accused of having abused Gregory’s daughter because she showed
up at her mother’s house with bruises.4 CPS told Mother that she had to leave
Gregory’s house because she had allegedly abused his daughter, and CPS said
that she was not allowed to take K.B. with her. So Mother left K.B. with Gregory.
Mother’s friend Cinnamon, Cinnamon’s two children, and Cinnamon’s son’s
father were also living with Gregory.
When Mother left Gregory’s house in May, she moved in with her friend
Alicia and stayed with her until August. After that, Mother moved in with her
4
Mother was never arrested or prosecuted for that case.
4
mother and stepfather. In 2007, Mother lived in a shelter in Dallas because she
and her stepfather did not get along.
In January 2007, K.B. went to live with Mother’s aunt5 because Gregory
had a ―dirty‖ urinalysis. Mother said that K.B. stayed with Mother’s aunt a year
and a half before he went to live with Mother’s sister.6 When Mother’s sister
could no longer take care of K.B., she took him to CPS. Thus, K.B. came into the
care of the Texas Department of Family and Protective Services (the
Department) around August 27, 2008.
Mother said that K.B.’s first foster placement was not a good environment
for him because he lived with two men who were brothers, and one of them was
jealous of K.B. and would tell him that he did not like him. The second foster
placement was ―a great environment.‖
2. Mother’s Contacts, Visits, and Relationship with K.B.
After Mother was asked to leave Gregory’s house, Mother said that she
saw K.B. on the following dates: in early September 2008; in March 2008 at her
aunt’s house; on December 15, 2007; about five times in the summer of 2007;
and twice in March 2007. Mother said that she visited K.B. infrequently because
5
Mother later explained that this ―aunt‖ was not related to her biologically
but was her mother’s friend.
6
Mother’s understanding was that K.B. was always in a safe place because
he was either with relatives or with people that Mother and K.B. had previously
lived with.
5
her aunt’s telephone number was always changing and she could not get in
touch with her to set up visits. Mother also saw K.B. the week before the trial.
Mother and K.B. ―talk about everything‖—e.g., how he is feeling, his
schoolwork, where she is staying, how she rented her apartment, the status of
the case—during their visits. Mother also said that she talked to K.B. on the
phone every night.
Mother said that she has taken things to the visits for K.B., even if it made
her ―broke.‖ She said that she had taken him hats, ―stuff for what he needed in
Boy Scouts,‖ and money.
Mother described K.B. as ―[o]utgoing, loving, sweet, obedient, wonderful,
great‖; very well mannered; and very respectful of others. Mother said that K.B.
has asthma that ―comes and goes.‖ Mother testified that she did not know what
school K.B. attended. However, Mother said that K.B. does very well in school,
always makes As and Bs, and passes all his benchmark tests, including the
TAKS test. Mother said that she knew K.B.’s clothes and shoe size, as well as
his hobbies.
Mother said that she loves K.B. with all her heart and that he loves her with
all of his. However, Mother admitted that she had always been there for K.B.
until ―all this happened‖ and that she has not had a relationship with him since
2006. Mother said that K.B. was doing ―all right, but he was upset with [her]
because of everything that was going on.‖
6
3. Mother’s Drug Use and Criminal History
Mother started using marijuana in 1998 when her grandmother died.
Mother started using cocaine the day after she was accused of abusing
Gregory’s daughter. Mother testified that she had been clean for almost three
years. Mother later clarified that when she said that she had been clean for three
years, that was from cocaine, not marijuana. She had not used marijuana since
the end of April or the beginning of May 2009. Mother said that she never
smoked marijuana around K.B. and that she never took care of K.B. while she
was under the influence of marijuana.
Mother has been arrested once for a ticket but was released after two
days. She did not specify what the ticket was for.
4. CPS Services
CPS provided services to Mother after the incident involving Gregory’s
daughter,7 and Mother went to Positive Influences for parenting classes and
completed her psychological evaluation in March 2008.
According to Mother, when the present case involving K.B. first began, she
lived in Dallas but was told that CPS was not going to provide her with services in
Dallas. Eventually, CPS set up her services in Dallas.
As mentioned above, the trial court signed an ―Agreed Order For Actions
Necessary For Parent To Obtain Return Of Child.‖ The first item required Mother
7
While Mother was under investigation for allegedly abusing Gregory’s
daughter, CPS provided Mother with services but did not give her visitation with
K.B.
7
to secure a safe, stable, appropriate living environment for herself and K.B.
Mother had agreed during a family conference in October 2008 to move back to
Fort Worth so that she could regularly visit K.B. and complete her services, but
Mother admitted that she did not actually move back to Fort Worth until
September 2009 because she was waiting on housing. Mother believed that she
could provide K.B. with a safe and stable environment at the apartment that she
was renting in Fort Worth.8 Mother said that she paid $50 a month for her two-
bedroom, two-bath subsidized apartment. Mother had a bed for herself, a bed
for K.B., a television, and a refrigerator. Mother also had some clothes for K.B.
Mother said that she planned to get more furniture for the apartment.
The second item required Mother to obtain gainful employment or provide
documentation of other means of support. Mother testified that she had been
working twenty hours a week for Mainstream Promotions on and off for about a
year. However, Mother admitted that she had not provided documentation to her
caseworker to prove that she had been working seven of the last twelve months.
Mother had also worked ―under-the-table jobs‖ during the months preceding the
trial. Mother said that at the time of trial, she was no longer doing the ―under-the-
table‖ jobs but was back working for Mainstream Productions. She said that she
was working in Fort Worth and had the option of working in Dallas on the
8
Mother said that initially, she was staying in her Fort Worth apartment four
nights and then staying in Dallas with her best friend on the weekends because
the train did not get her to her ―under-the-table‖ job (i.e., distributing flyers) early
enough and so she had to stay in Dallas. However, Mother began staying at her
apartment in Fort Worth every night after October 31, 2009.
8
weekends for extra money. At trial, Mother testified that she had $214 total.
Mother said that she was going to donate plasma and would receive $40. She
said that she does not donate plasma often but that she would do that if
necessary to supplement her income to take care of K.B.
The third item required Mother to participate in a drug/alcohol assessment
at Recovery Resource Council. Mother said that she did not go to Recovery
Resource Council; Mother said that she completed drug treatment in October
2009 with her family therapist.
The fourth item required Mother to follow all recommendations of the
drug/alcohol assessment with Recovery Resource Council. Mother was not
questioned about the recommendations that she was required to follow or her
compliance with this item.
The fifth item required Mother to follow the recommendations of her
psychological evaluation with Susan Talmidge,9 but Mother said that she had not
received any recommendations. Mother later agreed that one of the
recommendations was for her to attend individual counseling, but she said that
she was doing individual counseling before she had gone for her psychological
evaluation.
The sixth item required Mother to participate in individual counseling at
Positive Influences to address healthy decision-making, adaptive coping skills,
9
The record reveals that Mother completed a psychological evaluation at
Positive Influences with Susan Talmidge.
9
and relationship issues. Mother went to Positive Influences but not on a regular
basis because her 2054 form expired and someone took her spot. Mother later
admitted that before the 2054 form expired, it was good for twelve units, but she
used only three of them. Mother showed up tired and sleepy at one of the
sessions. During the sessions that Mother attended, she and the counselor
talked about Mother’s having a false sense of confidence, not being able to
recognize signs of relapse, and taking on the responsibility of stability and
parenthood. Mother ―no-showed‖ on June 23, 2009 and July 28, 2009 for her
counseling appointments.
The seventh item required Mother to submit to random drug testing. No
questions were asked about Mother’s compliance with this item.
The eighth item required Mother to participate in weekly visits with K.B. at
the DFPS office, and Mother agreed that she had not done that consistently.
5. Mother’s Assessment of Her Performance
Mother said that she had fallen short because she did not complete
everything on her service plan and because she did not visit her son as often as
she was supposed to. Mother said that she had made twenty of fifty-seven visits
with K.B. When asked how she had performed on visiting K.B. consistently, she
said, ―Not good on my part.‖ Mother admitted that was not fair to K.B. and that it
hurt him.
Mother gave herself a five out of ten for her progress in counseling and
said that she needed to make a ten for the trial court to return K.B. to her. On the
10
other tasks that she was required to do—visiting K.B. on a regular basis,
maintaining contact with the Department, obtaining housing, living there,
furnishing it, and securing employment—Mother also gave herself a five out of
ten. Mother said that she thinks that K.B. deserves ―[l]ove, support, everything
that a parent can do. . . . He would deserve a 10.‖
Mother agreed that she had been given ―over a year to be a ten in CPS’s
eyes‖ and said that she did not think that it would take her much longer to get
there. She said that this had ―hit [her] so hard,‖ that it had taken her awhile to get
a grip on herself and to start taking care of her business, and that it took her ―so
long‖ to get her services started, so she did not get started working her services
until the end of October or the middle of November.
Mother admitted that she could have made a better effort to get K.B. back.
Mother said that if she had it to do over again, she would have gone to more
counseling sessions and would never have gotten involved with Gregory. She
explained, ―I would have just kept on doing what I was doing, but it was hard, and
I was by myself and I was looking for an easy way to get out and I took the easy
way and got me in the predicament that I’m in now.‖ Mother said that it hurt her
to hear CPS say that she was not putting in the effort; she was putting in a lot of
effort, ―but things [kept] happening.‖
Mother admitted that K.B. had moved ―a lot‖ and that she had certainly not
planned that for him when he was born. Mother admitted that she had placed
K.B. in danger, but she has never been accused of abusing K.B. Mother agreed
11
that K.B.’s life was ―somewhat unstable‖ due to having ―multiple caretakers.‖
Mother also agreed that K.B. needs to have a stable home and a stable person
to take care of him. She said that she is now a stable person and has been since
September 2009. However, Mother said that she was not going to lie and say
that she had been a stable person in K.B.’s life.
Mother had several excuses for her performance. With regard to the
services CPS provided after the incident involving Gregory’s daughter, Mother
said that CPS kept giving her the ―runaround‖ regarding her parenting classes
and anger management classes until she ―got so mad and . . . blew up.‖ Mother
said that CPS had fallen short because there were times when she showed up
for a visit, and K.B. was not there. Mother said that CPS had also fallen short
when they promised her that they were going to help furnish her apartment and
then did not do so. Mother said that CPS had also failed to give her paperwork
to the different agencies with whom she was supposed to work her services.
Mother further testified that she had a hard time going to counseling because the
agency that she went to would not let her in because they thought her address
was a Tarrant County address. However, Mother explained that part of the
problem was that she had a Tarrant County CPS case but that she had a Dallas
address.
When asked if she thought her parental rights to K.B. should be terminated
based on her performance of the required tasks, Mother said that she did not
12
think so because she knew of people who had not worked their plans and who
had their children returned to them.
6. Mother’s Recommendation and Plans
When asked why her parental rights to K.B. should not be terminated,
Mother stated, ―Even though I know I haven’t been correct on my visits like I’m
supposed to and I haven’t completed one of my services, my rights shouldn’t be
terminated because I’m still here and I’m still going to fight regardless of the
facts.‖
Mother said that she wants K.B. back ―because he’s [her] heart‖ and
because she does not believe that K.B. will do well if he is adopted. Mother
agreed that she was asking the judge to return K.B. to her care and said that she
was going to live in her apartment in Fort Worth.10 She said that her boss was
aware that she was trying to get her son back and that he would switch her hours
so that she would not have to be in Dallas on the weekends. She would work
noon to five p.m. Mondays through Thursdays. Mother had lined up a school for
K.B. to attend and had after-school care lined up for him at the YMCA or the
Boys’ and Girls’ Club. Mother said that she would be home from work by 6:30
p.m.
10
Mother said that she had not come up with any relatives to place K.B.
with other than her mother, who used to have ―a really bad drug habit‖ and who
had not visited with K.B. other than on the phone.
13
Mother admitted that she had been dating a man for three years and was
engaged to him at the time of the trial. She said that she had spent the night with
him but was not living with him. Mother said that he works in Dallas and that he
has two children who live with their mother. Mother said that he is trying to get
custody of his children, that he has never been involved with CPS, and that he
has never been to jail. Mother said that if everything ―goes right‖ and K.B. is
returned to her, she plans to get married in 2010, but she does not want to get
married without her son being present. Mother said that her fiancé has met K.B.
three or four times but that she wants K.B. to have a relationship with her fiancé
and his children before she gets married. Ultimately, Mother testified that she
wanted K.B. to go home with her the day of trial whether she gets married or not.
B. Caseworker’s Testimony
Pamela Gillinger, a caseworker for the Department, testified that she had
been assigned to the case in which Mother was accused of abusing Gregory’s
daughter, as well as to the case involving K.B. when he came into foster care.
1. History
Gillinger confirmed that a CPS investigator had asked Mother to leave
Gregory’s home after the alleged abuse involving his daughter and that Mother
had voluntarily placed K.B. with Gregory. Gillinger said that Mother had visits
with K.B. that were supervised by Gregory. Gillinger said that K.B. was in danger
14
when he lived with Gregory because there was a registered sex offender living in
Gregory’s house.11
In 2007, after Gregory tested positive for cocaine, Mother signed a
voluntary placement to allow K.B. to move from Gregory’s home to Mother’s
aunt’s home. Mother also signed a safety plan stating that she would not have
any unsupervised contact with K.B. and that Mother’s aunt would supervise the
visits.
From Mother’s aunt’s house, K.B. went to live with Mother’s sister, and
from there, Mother’s sister brought K.B. to CPS where he went into foster care.12
K.B. had lived in three foster homes at the time of trial.13
2. Mother’s Services and Compliance
Gillinger testified that Mother’s services on the initial case involving
Gregory’s daughter were originally started in Fort Worth and later moved to
Dallas. Mother’s plan required her to attend anger management classes, and
she did. Mother worked services until she had an altercation with Gregory and
moved to Dallas; then, Mother went three or four months without working her
11
Gillinger could not remember the sex offender’s name, but the record
suggests that it may have been Sylvester, Cinnamon’s youngest son’s father,
who lived with Gregory.
12
Gillinger’s understanding was that Mother’s sister could no longer take
care of K.B. because his ―behavior was very difficult.‖ Gillinger said that K.B. had
―occasional misbehavior.‖
13
Mother mentioned only two foster homes during her testimony.
15
services. If Mother had worked her services, she would have been reunited with
K.B.
The service plan from September 2008 provided that Mother would have
visitation with K.B. for one hour each week and required Mother to provide safe
and appropriate housing, to financially provide for K.B.’s basic needs, to develop
a support system to help with K.B., to attend and participate in individual
counseling, to attend and participate in anger management classes, to attend
and participate in parenting classes, and to complete a psychological evaluation.
The service plan stated that K.B. did not have any special needs as of that time
but that K.B. was having a difficult time dealing with the separation from his
family and that he would be referred to a therapist to help deal with that.
With regard to Mother’s compliance with her service plan, Gillinger thought
that Mother had attended more than twenty visits but not ―a whole lot more‖ of
the weekly visits that were allowed while the case was pending for over a year.
Gillinger said that Mother had completed her drug screens, had attended some
family counseling sessions, and had completed her psychological evaluation.
Gillinger said that the primary recommendation from Mother’s psychological
evaluation was to attend counseling, which Mother was already doing. Gillinger
testified that she had not called any of Mother’s employers to confirm that she
was working.
Gillinger visited Mother’s apartment in Fort Worth on September 28, 2009,
and saw that it was empty; there was a pallet in the bedroom and no food in the
16
cabinet or the refrigerator.14 Gillinger said that Mother had requested assistance
furnishing her apartment but did not receive any because ―[t]he only time we
really provide furnishings is when we’re working toward reunification.‖
3. Status Updates
Gillinger reported as of December 31, 2008, that allegations had been
made that Mother had lost her temper in the past while disciplining K.B., resulting
in his punishment being more severe than his behaviors warranted. Gillinger
also reported as of December 31, 2008 that Mother had not provided care for
K.B. in over two years and might require additional support in meeting his needs.
The ―Service Plan Review‖ that Gillinger completed in January 2009 stated
that ―visits go very well, [K.B.] and his mother are very bonded to each other,
[K.B.] loves his mother unconditionally, family likes to go fishing, family is
supportive of [Mother], she has maintained contact with CPS, resourceful,
determined.‖
As of May 11, 2009, CPS’s concerns, which were listed in the ―Family
Service Plan Evaluation,‖ included that Mother had a ―rigid parenting style‖
according to the psychological testing that she had completed and that ―may be a
cause for concern with her anger management issues‖; that Mother had not
followed through with the requested drug test nor had she provided verification of
her employment; that she had inconsistently visited K.B.; that she did not have
14
At the time of the trial in November 2009, Gillinger could not say whether
Mother’s apartment was a safe and stable environment because she had not
been there since late September 2009.
17
stable housing; and that she had denied using drugs when she spoke to Gillinger
but had admitted drug use when she was in therapy.
4. CPS’s Recommendation and Plans for K.B.
Gillinger testified that she did not believe that Mother could provide a safe
environment for K.B.15 Nor did Gillinger believe that Mother could provide for
K.B.’s physical and emotional needs right now. Thus, Gillinger asked the trial
court to terminate Mother’s parental rights to K.B. Gillinger believed that it was in
K.B.’s best interest for Mother’s parental rights to be terminated because she
was inconsistent—not regularly visiting K.B., not following through with services,
not providing stable housing, and not providing documentation that she had been
employed. Gillinger also believed that having the trial court terminate Mother’s
parental rights would be in K.B.’s best interest to allow him to be adopted.
Gillinger testified that because the current foster parent was not interested
in adopting K.B. as a single parent, CPS had ―done a broadcast‖ on K.B. to seek
home studies for adoptive placements, and they had received seven or eight
responses. If the trial court terminated Mother’s parental rights to K.B., CPS
planned to select a family, make a presentation to them, and then move forward
with the adoption process.
15
When Gillinger was asked whether her primary allegation was that K.B.
had been abused, she responded, ―Neglected, maybe.‖
18
C. CASA Advocate’s Testimony
Samuel Pacilli, the CASA advocate who was assigned to the case in
October 2008, described K.B. as ―a fantastic kid.‖ Pacilli said that K.B. plays flag
football with a YMCA team and is active in the Boy Scouts.
Pacilli said that early on during the case, he would bring lunch to K.B. at
school, and K.B. would take small bites and pack the rest away for later. This
indicated to Pacilli that K.B. was used to not having food. Over time, K.B.
stopped hoarding food.
Pacilli said that K.B.’s living environment had been ―very unstable‖ and that
he thought K.B. was ―used to having people he cares about being removed from
him, so I think that makes him want to protect himself.‖ Pacilli said that K.B. was
―really guarded‖ with him and did not open up about his feelings regarding not
going back to live with Mother. Pacilli testified that he had received conflicting
messages from K.B. on whether he wanted to return home. Pacilli said, ―I think
in his heart, he wants to be with his mother, and I think in his head, he also
knows that it may not be the best situation.‖ However, Pacilli said that he knows
that K.B. ―loves his mom very much‖ and that K.B. is upset when Mother does
not show for visits.
Pacilli recommended that K.B. not be returned to Mother. Pacilli believed
that it was in K.B.’s best interest for Mother’s parental rights to be terminated.
Pacilli said that his recommendation to terminate Mother’s parental rights was
based on the instability in Mother’s life and the fact that he had wanted Mother to
19
exhibit more enthusiasm for getting K.B. back home with her. Pacilli opined that
K.B. was ―getting to an age where it’s going to become even more critical that
he’s in a stable environment and he’s given opportunities to flourish, that he’s
given the options that he needs to become a really successful adult, and my
concern is that [Mother] will not be able to provide that environment for him
[based on her lack of enthusiasm].‖ Furthermore, Pacilli had no reason to
believe that K.B. would not adapt to a new home if he was placed for adoption.
D. Trial Court’s Disposition
After hearing the above testimony, the trial court took the case under
advisement. The trial court thereafter found by clear and convincing evidence
that (1) Mother had knowingly placed or knowingly allowed K.B. to remain in
conditions or surroundings that endangered his physical or emotional well-being,
(2) Mother had engaged in conduct or knowingly placed K.B. with persons who
engaged in conduct that endangered his physical or emotional well-being, (3)
Mother had failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the return of K.B., who had
been in the permanent or temporary managing conservatorship of the
Department for not less than nine months as a result of his removal from Mother
under Chapter 262 for abuse or neglect, and (4) termination of the parent-child
relationship between Mother and K.B. was in his best interest. The trial court
signed an order to this effect, and this appeal followed.
20
IV. LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE OF ENDANGERMENT GROUNDS
In her second issue, Mother argues that the evidence is legally and
factually insufficient under family code sections 161.001(1)(D) and (E) to support
the judgment terminating her parental rights to K.B.
A. Burden of Proof
A parent’s rights to ―the companionship, care, custody, and management‖
of 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). 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 parent. Holick, 685 S.W.2d at 20–
21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, 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
21
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, .206(a). Evidence is clear and
convincing if it ―will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.‖ Id.
§ 101.007 (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).
B. Legal Sufficiency Standard of Review
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
22
reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But 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 must defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
C. Factual Sufficiency Standard of Review
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that Mother violated sections 161.001(1)(D) or (E) and that the termination of the
parent-child relationship is in the best interest of K.B. Tex. Fam. Code Ann.
§ 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
23
D. 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), the Department had to prove that Mother
(1) knowingly (2) placed or allowed K.B. to remain (3) in conditions or
surroundings that endangered his physical or emotional well-being. See Tex.
Fam. Code Ann. ' 161.001(1)(D). Subsection (D) focuses on dangerous
conditions or surroundings that endanger the physical or emotional well-being of
the child. 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. Id. 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.
Inappropriate, abusive, or unlawful conduct by persons who live in the child’s
home or with whom the child is compelled to associate on a regular basis in the
home is part of the ―conditions or surroundings‖ of the home under section
161.001(1)(D). In re C.L., No. 02-09-00126-CV, 2009 WL 3078588, at *4 (Tex.
App.––Fort Worth Sept. 24, 2009, no pet.) (mem. op.). Additionally, a parent
need not know for certain that the child is in an endangering environment;
awareness of such a potential is sufficient. Id.
24
Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of K.B.=s physical well-being was the direct result of
Mother=s conduct, including acts, omissions, or failures to act. J.T.G., 121
S.W.3d at 125; see Tex. Fam. Code Ann. ' 161.001(1)(E). Additionally,
termination under section 161.001(1)(E) must be based on more than a single
act or omission; a voluntary, deliberate, and conscious course of conduct by the
parent is required. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
' 161.001(1)(E). It is not 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). 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.).
Stability and permanence are paramount in the upbringing of children.
See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.––Fort Worth 2002, pet. denied).
A factfinder may infer from past conduct endangering the well-being of the child
that similar conduct will recur if the child is returned to the parent. See In re
D.L.N., 958 S.W.2d 934, 941 (Tex. App.––Waco 1997, pet. denied), disapproved
on other grounds by J.F.C., 96 S.W.3d at 256, and C.H., 89 S.W.3d at 17. Drug
use and its effect on a parent=s life and her ability to parent may establish an
25
endangering course of conduct. Dupree v. Tex. Dep’t of Protective & Regulatory
Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ).
The record contains substantial evidence of subsection (D) environmental
endangerment and subsection (E) course of conduct endangerment to the
physical or emotional well-being of K.B. Because the evidence concerning these
two statutory grounds for termination is interrelated, we consolidate our
examination of it. See J.T.G., 121 S.W.3d at 126.
E. Analysis
The record demonstrates that Mother has a long history of illegal drug use,
dating back to 1998, and that she had been off marijuana for only about six
months at the time of trial. Mother also kept company with other drug users,
including Gregory and her mother. Mother consented to the placement of K.B.
prior to CPS’s involvement, allowing K.B. to live with people who apparently did
not feed him enough because it was noted that K.B. hoarded food when the
CASA advocate met with him. Additionally, Mother moved K.B. into a home with
a drug dealer (Gregory) and a registered sex offender (who was not named) and
ultimately allowed K.B. to live there by himself while Mother lived elsewhere.
The record also revealed that Mother had been accused of abusing Gregory’s
child and that her punishment of K.B. at times was more severe than his behavior
warranted. Mother admitted that she had placed K.B. in danger. Mother also
admitted that K.B.’s life was ―somewhat unstable,‖ and the record reflects that
Mother had moved K.B. from her grandmother’s house to the Presbyterian Night
26
Shelter, then back to her grandmother’s house, then to Gregory’s house, then to
Mother’s apartment, then back to her grandmother’s house, and then back to
Gregory’s house all by the time K.B. was seven. From there, K.B. went to live
with Mother’s aunt and Mother’s sister before coming into CPS custody shortly
before he turned nine. Mother further admitted that she had not been a stable
person in K.B.’s life, and the record reveals that Mother’s transient lifestyle failed
to provide K.B. with the stability that he needed. After carefully reviewing the
entire record and viewing all of the evidence in the light most favorable to the
finding and judgment, we hold that the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. See Tex. Fam. Code Ann. ' 161.001(1)(D), (E); J.P.B., 180 S.W.3d at
573.
Although Mother loves K.B. and had made some effort to comply with her
service plan and although the record indicates that CPS implicitly approved the
placement of K.B. with Gregory, who was a drug addict, the record also reflects
that Mother had only recently quit using marijuana; that she did not complete her
drug/alcohol assessment until the month before trial; that she did not provide
evidence of stable employment; and that she did not secure safe, stable housing
in Fort Worth until September 2009—two months prior to trial—despite having
had a year to do so. Giving due deference to the trial court=s findings, we hold
that a reasonable trier of fact could have formed a firm belief or conviction that
Mother knowingly placed K.B. in conditions and engaged in conduct that
27
endangered his physical or emotional well-being. See Tex. Fam. Code Ann.
' 161.001(1)(D), (E); J.F.C., 96 S.W.3d at 265B66; C.H., 89 S.W.3d at 25; J.T.G.,
121 S.W.3d at 124.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court=s findings on environmental endangerment and course of
conduct endangerment. See C.L., 2009 WL 3078588, at *4 (holding that
evidence was legally and factually sufficient to support trial court’s endangerment
finding under section 161.001(1)(D) when father left child in a home that included
a known alcoholic and an alleged juvenile sex offender); In re R.M., No. 14-02-
00221-CV, 2003 WL 253291, at *4 (Tex. App.––Houston [14th Dist.] Feb. 6,
2003, no pet.) (mem. op.) (holding that evidence was legally and factually
sufficient to support finding that mother engaged in conduct endangering the
physical or emotional well-being of child, even though child was removed three
days after birth, where record demonstrated, among other things, that mother
used drugs, failed to establish a stable residence, and failed to maintain
employment); see also 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 use during pregnancy and drug use six to eight months before the
termination trial constituted legally and factually sufficient evidence of
28
endangerment under section 161.001(1)(E)). We overrule Mother’s second
issue.16
V. FACTUALLY SUFFICIENT EVIDENCE OF BEST INTEREST GROUND
In her fourth issue, Mother argues that the evidence is factually insufficient
to support the trial court’s finding that termination of the parent-child relationship
is in K.B.’s best interest.
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
16
Texas law provides that parental rights may properly be terminated when
a trial court has made a finding under either section 161.001(1) or section
161.003, plus a best interest finding under section 161.001(2). See In re W.E.C.,
110 S.W.3d 231, 240 (Tex. App.—Fort Worth 2003, no pet.). Because we have
held that termination was proper under section 161.001(1)(D) and (E), we need
not address the part of Mother’s third issue in which she challenges the trial
court’s termination of her parental rights based on grounds listed under section
161.001(1)(O). See Tex. R. App. P. 47.1.
29
others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;
(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
30
stability 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 K.B.
was almost ten at the time of trial, was doing well in school, and was active in
several extracurricular activities. K.B. appeared to have adjusted well despite
having had many out-of-home placements during his childhood and having been
placed in three foster homes. At the time of trial, the main source of harm that
was a continuing concern was Mother’s unstable housing. The CASA advocate
testified that K.B. had mixed emotions about returning to Mother. Although K.B.
had lived with a drug dealer and a registered sex offender, as well as Mother and
a grandmother who had abused drugs, no testimony was given regarding any
abusive conduct towards him. The record demonstrates that Mother was
unenthusiastic about working her services, and she gave herself only a five out of
31
ten as far as completing the required services. Mother’s testimony regarding her
employment left major questions as to whether she had the ability to financially
provide for K.B., and she had no support system in place to help her.
With regard to the Holley factors, the record reveals that K.B. did not
testify, but his mixed emotions about returning to Mother were expressed by the
CASA advocate. K.B. did not have any special physical needs, other than
occasional asthma. K.B.’s main emotional need was for stability, which was
lacking in Mother’s life. She admitted that she had not had a relationship with
K.B. since 2006. The record did not reveal specific programs that were available
to help promote K.B.’s best interest, other than the services that were offered to
Mother, in which she did not fully participate. CPS planned to seek adoption for
K.B., while Mother planned for K.B. to live with her. Because CPS had not
narrowed down a possible placement for K.B., the stability of the proposed
placement cannot be analyzed. If K.B. went to live with Mother, the stability of
the home would be questionable because Mother had lived in the two-bedroom,
subsidized apartment for only two months at the time of trial. Mother had failed
to work her services and had visited with K.B. only twenty of the fifty-seven times
that visits were offered, which indicates that the existing parent-child relationship
is not a proper one. Furthermore, Mother provided several 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 K.B. with a safe environment and the Holley
32
factors, we hold that a reasonable trier of fact could have formed a firm belief or
conviction that termination of Mother’s parental rights to K.B. is in K.B.’s best
interest. See Tex. Fam. Code Ann. § 161.001(2); In re J.W., No. 02-08-00211-
CV, 2009 WL 806865, at *7 (Tex. App.––Fort Worth Mar. 26, 2009, no pet.)
(mem. op.) (holding evidence legally and factually sufficient to support best
interest finding when record disclosed, among other things, that mother used
drugs, moved three times during pendency of case, did not complete services,
and attended only thirteen of forty-four visits). We overrule Mother’s fourth issue.
VI. CONSTITUTIONALITY OF SECTION 153.007 NOT RAISED IN STATEMENT OF POINTS
In an alternative argument under her third issue, Mother argues that Texas
Family Code section 153.007 unconstitutionally shifts the burden of proof from
the State to Mother. Specifically, Mother argues that there was inherent
vagueness in some of the terms contained in the Agreed Order, that it was unfair
to impose new terms and conditions of return on Mother and then ―almost
immediately‖ use them as a new ground for termination, and that ―the imposition
of an Agreed Order and any subsequent finding of non-compliance is a
fundamental change in the accepted legal burden of proof.‖ Mother did not raise
this issue in her statement of points and has therefore waived the issue on
appeal. See In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010). We therefore
overrule the remainder of Mother’s third issue.
33
VII. FAULTY DATE ON JURAT WAS DEFECT IN FORM THAT REQUIRED PRESERVATION
As required by Texas Family Code section 262.101, the State attached an
affidavit to its ―Petition For Protection Of A Child, For Conservatorship, And For
Termination In Suit Affecting The Parent-Child Relationship.‖ The jurat affixed to
the affidavit states, ―SUBSCRIBED AND SWORN TO BEFORE ME THIS 27
DAY OF August, 2003.‖ The year was typed on the jurat; the day and the month
were handwritten. The trial court signed an order dated August 27, 2008.
In her first issue, Mother argues that the State’s pleadings seeking
termination are based on a factually and legally void affidavit of removal.
Specifically, Mother argues that it is impossible for the affiant to have had
personal knowledge of the events of August 27, 2003, or that facts from 2003
would be relevant to the removal that took place in August 2008.
An ―affidavit‖ is ―a statement in writing of a fact or facts signed by the party
making it, sworn to before an officer authorized to administer oaths, and officially
certified to by the officer under his seal of office.‖ Tex. Gov’t Code Ann.
§ 312.011(1) (Vernon 2005). The statutory definition of ―affidavit‖ contains no
requirement of a date. See id.; see also Omodele v. Adams, No. 14-01-00999-
CV, 2003 WL 133602, at *5 n.1 (Tex. App.––Houston [14th Dist.] Jan. 16, 2003,
no pet.) (mem. op.). The lack of a specific date in the jurat of an affidavit does
not render the affidavit invalid. See Omodele, 2003 WL 133602, at *5 n.1.
Here, the affidavit contained the necessary requirements to meet the
definition of an ―affidavit‖ under the government code. See Tex. Gov’t Code Ann.
34
§ 312.011(1). The fact that the affidavit contained a defective date did not render
the affidavit invalid. See Omodele, 2003 WL 133602, at *5 n.1 (holding that the
lack of a specific date in the jurat of an affidavit does not render the affidavit
invalid). Instead, the defective date is akin to a formal defect in the verification of
a plea or a pleading, which is deemed waived unless the defect is challenged.
Cf. Galaznik v. Galaznik, 685 S.W.2d 379, 382 (Tex. App.––San Antonio 1984,
no writ). The record here, however, does not contain an objection from Mother
regarding the defective date in the jurat. Because Mother did not object to this
formal defect in the trial court, she has failed to preserve her argument for
appeal. Cf. id. (stating that ―[h]ad the lack of verification of the pleading been
complained of before trial by special exception, it would have been well taken‖
and holding that the defect in the pleading was waived). We overrule Mother’s
first issue.
VIII. CONCLUSION
Having overruled all of Mother’s issues that are necessary for disposition
of this appeal, we affirm the trial court’s judgment terminating Mother’s parental
rights to K.B.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DELIVERED: October 14, 2010
35