in the Interest of T.N.C., C.M.C., and J.P.C., Minor Children ( 2011 )

NUMBER 13-11-00305-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF T.N.C., C.M.C., AND J.P.C., MINOR CHILDREN
On appeal from the 156th District Court
of Live Oak County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, F.A.C., appeals the termination of her parental rights to her three
children, T.N.C., C.M.C. and J.P.C.1 By five issues, F.A.C. contends that: (1) the
evidence is legally and factually insufficient to support the trial court‘s finding that she
violated four statutory grounds for termination; and (2) the evidence is legally and
1
See TEX. R. APP. P. 9.8(b)(2) (providing that in a parental-rights termination case, ―the court
must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor‘s identity, to the
minor‘s parent or other family member‖).
factually insufficient to support a finding that termination was in the best interest of the
children. We affirm.2
I. BACKGROUND
After receiving a report alleging that F.A.C. had physically neglected T.N.C., the
Texas Department of Family and Protective Services (the ―Department‖) filed an original
petition for protection of a child, for conservatorship, and for termination in a suit
affecting the parent-child relationship regarding T.N.C. and J.P.C.
On March 11, 2010, the trial court entered an order for protection of a child in an
emergency and notice of hearing naming the Department as the temporary sole
managing conservator of the children, T.N.C. and J.P.C., and setting a hearing pursuant
to section 262.201 of the Texas Family Code. On March 24, 2010, the trial court, in its
temporary order following adversary hearing, ordered F.A.C. to: (1) provide child
support, medical support, her medical history, and contact information of family
members with whom the children may be placed; (2) attend and cooperate fully in
counseling sessions, parenting classes, and appear for drug and alcohol dependency
assessment; (3) comply with each requirement set out in the Department‘s service plan;
and (4) provide, within thirty days, ―information sufficient to accurately‖ identify her net
resources and ability to pay child support, establish the parentage and immigration
status of the children, to ensure that the Department has the children‘s medical history,
the parents‘ current address and contact information, and required notification within
five days of a change of address or phone number.3
2
The father is not a party to this appeal.
3
The trial court documented that F.A.C. had failed to appear at the hearing after being ―duly and
properly notified.‖
2
On April 20, 2010, the Department filed an amended petition for protection of a
child for conservatorship, and for termination in a suit affecting the parent-child
relationship, requesting that F.A.C.‘s parental rights to C.M.C. be terminated. On that
same day, the trial court appointed the Department temporary sole managing
conservator of C.M.C. The trial court made similar orders as in its March 24 order for
F.A.C. to follow with respect to C.M.C.
On February 28 and March 1, 2011, a jury trial to determine whether F.A.C.‘s
parental rights should be terminated was held. Upon the jury‘s finding that F.A.C. had
violated section 161.001 subsections (D), (E), (N), and (O) and that termination was in
the children‘s best interest, the trial court entered an order terminating F.A.C.‘s parental
rights as to T.N.C., J.P.C., and C.M.C. See TEX. FAM. CODE ANN. § 161.001(1)(A-T)
(West Supp. 2010). This appeal followed.
II. THE EVIDENCE
F.A.C. testified that she currently resides in McAllen, Texas with a friend who has
four children and is working part time as a maid. F.A.C. stated that she has lived at this
residence for one month; previously, she lived in the residence next door to this
residence for approximately ―a couple of months.‖ Before moving to McAllen, F.A.C.
lived in Edinburg on Rayburn Street ―from June until 4th of July, and then [she] went
back July 11th, and then [she went] back to George West [on July] 20-something.‖
F.A.C. stated she ―went back August 13th until close to Thanksgiving‖; however, it is
unclear where F.A.C. meant. F.A.C. testified that during the pendency of the
proceedings, she has lived in six different locations and that she did not consider those
living conditions to be stable.
3
F.A.C. worked at the Dairy Queen in George West when the Department‘s
investigation began. She stated that she quit her job at Dairy Queen on approximately
May 23, 2010 and she started working again in July until August 13, 2010. F.A.C.
claimed that she worked at Whataburger from ―the beginning of December until
December 28th, and then in Edinburg at a grapefruit warehouse was [sic] December
28th to February 1st[, 2011].‖ According to F.A.C., she has been hired to work at the
Whataburger in Elsa, Texas and will begin in a few weeks; she also has been accepted
to train as a medical assistant at South Texas Vocational Institute.
F.A.C. stated that she lived in George West on Highway 281 when the
Department began its investigation of neglect in January, 2010. At that time, T.N.C. and
C.M.C. were attending school—T.N.C. was in kindergarten and C.M.C. was in Head
Start. According to F.A.C., T.N.C. had failed kindergarten because of her truancy, and
F.A.C. ―went to court for it.‖ F.A.C. claimed that T.N.C. did not want to go to school and
that T.N.C. had trouble waking up and would miss the bus. F.A.C. did not have a car to
drive T.N.C. to school. F.A.C. agreed that it was her responsibility to get T.N.C. to the
bus on time, but she claimed that she was not home the majority of the time T.N.C.
missed the bus and blamed the father. F.A.C. acknowledged that in order to ―go to
court for truancy there would have to be a lot of absences.‖
F.A.C. testified that she received calls from T.N.C.‘s school regarding her
hygiene and clothing. F.A.C. stated, ―[T.N.C.] would urinate herself, she had a kidney
and bladder infection. I would take her to the hospital, she would get treated for it. She
had lice, and I would clean it, but she would get reinfested.‖ F.A.C. agreed that when
the Department began its investigation of the allegations of neglect and abuse, she
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voluntarily placed her children outside the home with a family friend, Marta Garcia.
F.A.C. stated that she thought the children were with Garcia for approximately one
month; she did not recall exactly how long. F.A.C. claimed that the electricity in her
home was ―cut off‖ the same day the Department removed the children from her home.
F.A.C. admitted that the Department‘s investigator asked her to make several
improvements to the home, including, ―fixing some windows and a hole in the restroom
floor.‖ F.A.C. claimed she never made these improvements because she had ―a month
to do it . . . [and] the kids got removed before the 30 days.‖ F.A.C. also claimed that the
father was in charge of making the improvements and that she does not know how to fix
a window. F.A.C. did not believe that the Department was unreasonable for asking her
to make the improvements within thirty days.
F.A.C. could not recall being ordered by the trial court to be present at an
adversary hearing regarding her children. However, when asked if she remembered
telling a caseworker that she was in Edinburg the day before the hearing, F.A.C. replied,
―I had went, because we were buying a trailer house in Three Rivers, and they went to
check the house. The floors needed to be fixed. I had gone to Edinburg to get some
supplies, I ended up going to jail because I had a warrant for my arrest. I wasn‘t able to
come to court.‖ F.A.C. agreed that it would have been important for her to be present at
the hearing.
F.A.C. identified petitioner‘s exhibit number 1 as a family service plan regarding
her children. The trial court admitted the service plan into evidence. It states that the
Department became involved in F.A.C.‘s case because:
[T.N.C.] was missing alot [sic] of school, had lice, was unkempt,
smelled of urine. Parents did not send spare clothing to school as
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requested. [T.N.C.] had recurring kidney infections. [T.N.C.] would arrive
at school with no underwear or socks. [T.N.C.] and siblings were dressed
inappropriately for weather. [T.N.C. was required to repeat kindergarten]
due to [a] significant amount of missed school. The children were not
receiving proper medical attention or having their medication properly
administered. Allegations of domestic violence and substance abuse
contributed to the Department seeking legal custody of the children.
The plan states that once the children are returned to the parents, the parents will
―provide a learning and educational environment‖ by reading to the children and
engaging the children in educational activities and by ensuring that the children attend
school and complete any assigned homework. The Department‘s concerns as of April
20, 2010, related to risk and safety of the children were documented in the plan as
follows:
All three children are under the age of 5 and are unable to verbalize
and protect themselves from harm. The ages of the children are 5, 4, and
2 years old. The 4 year old [C.M.C.] has a speech problem, she could not
verbalize her full name or answer introductory questions. [F.A.C.] and
[the] father informed the Department of her problem, and she is going to
begin speech therapy at Headstart. [T.N.C.] is aggressive. She talks
back and was noted to kick her caregiver. She will also resist her parent‘s
directives. She was physically pushing her mom away when her mom
was trying to put her seat belt on after [T.N.C.] verbally refused. She was
also sticking the finger at her parents.
Parents lack control over the children. The children hit their parents
and talk back. Parents cannot make children get up for school. Parents
can‘t potty train. Mom admitted drug use after kids removed.
Children play outside inappropriately dressed for weather without
supervision. Children are not given medication for pink eye, have had lice
for months, need immunizations, children are dirty. Mom has left kids to
go out of town, at least twice during investigation, to go with friends.
The issues, concerns, and conditions initially bringing the children
into CPS have worsen[ed] since the Department[‘]s involvement. The
children‘s lack of medical attention and parent[‘]s inability to administer
their medication; drug use; education; and physical care and condition of
the children are concerns.
6
The home does need to be significantly organized and cleaned. A
window in the house is broken and there is a hole in the bathroom floor as
one enters. The child [T.N.C.] voluntarily expressed that father has hit
[F.A.C.] in the mouth, more than once, and it makes [T.N.C.] feel angry
and sad. The home‘s interior and exterior was filthy. It was impossible to
determine junk or trash from items kept. The home smelled like animal
urine, clothes were scattered, and the home had several hazards, such as
broken windows, and holes in the floor.
[F.A.C.] does not realize the extent of neglect or minimizes the
concerns. [F.A.C.] seems unmotivated because of the overwhelming
socioeconomic stress. [F.A.C. and the father] have lied to [the
Department]. They changed [their] story [regarding an] incident when [the]
father left with kids, [F.A.C.] changed date of drug use, [and they] lied
about [their] income tax return.
[F.A.C.‘s and the father‘s] work schedules have caused them to
need a babysitter. Their landlord will be babysitting. This appears to be
the only person who can help this family. Most relatives live out of town.
Friends and family members mentioned in town are males who can not
care for the children. Parents had trouble finding placements. They claim
to stick to themselves. Father reported that [F.A.C.] threatened to leave
with the children.
[F.A.C.] disclosed that she wanted to go away and start over with or
without the children.
The family plan also set out the goals for F.A.C. and the father as follows: (1)
parents shall attend individual therapy and demonstrate an ability to support and protect
their children; (2) parents will sign a release of information for all physicians,
psychologists, therapists, and drug treatment centers; (3) parents shall become
employed full time by May 30, 2010 in order to support themselves and the children; (4)
parents shall provide verification of employment; (5) parents shall provide original birth
certificates, social security cards, and immunization schedules for T.N.C., J.P.C., and
C.M.C.; (6) parents shall notify the Department within five days of a change of address
and phone number; (7) parents ―shall actively participate in services provided by the
Department as well as services obtained through referrals‖; (8) parents shall complete a
7
drug assessment; (9) ―Parents shall participate in supervised visitations by the
Department and demonstrate learned parenting skills as arranged through the
Department‖; (10) ―Parents shall provide and maintain appropriate housing that is free
of health and safety hazards‖ with working utilities, access to a telephone for emergency
purposes, adequate food, medical care, and clothing for the children; (11) parents shall
provide the Department with proof of appropriate housing and working utilities by May
30, 2010; (12) parents shall pay child support; (13) parents shall participate in random
drug testing with negative results; (14) parents shall attend and complete parenting
classes; (15) parents shall make an appointment with ―MHMR‖ and attend
recommended services; (16) parents shall provide complete medical history of
themselves and the children; and (17) parents shall undergo psychological testing. The
Department‘s task/service included monitoring and supporting the parents with
completing designated tasks to facilitate family reunification. F.A.C. signed the plan on
May 11, 2010 acknowledging that she understood that the family plan ―is a very
important document‖ and that if she was unable or unwilling to provide her children with
a safe environment, her parental rights may be terminated, and that a court hearing
would be held to review the family service plan.4
F.A.C. stated that she was supposed to follow the service plan and that it
documented the services she was ordered to complete. F.A.C. claimed that she
attended individual therapy in Edinburg; however, she stated that she did not have any
4
In a May 12, 2010 status hearing order, admitted as petitioner‘s exhibit number 2, the trial court
ordered that ―the permanency plans and recommendations for the children, set out in the service plans
filed with the Court, are approved and adopted by the Court as if set out verbatim in this order.‖
8
documentation proving that she did so.5 F.A.C. testified that she attended three
counseling sessions; then she stated that she could not remember. When asked if she
complied with the requirement that she notify the Department of any address or
telephone changes within five days, F.A.C. replied, ―Yes, sir, but not within five days.‖
When asked if the Department was able to contact her by phone when necessary,
F.A.C. responded, ―Sometimes.‖ When asked if she complied with the requirement that
she participate in supervised visitations with the children, F.A.C. said, ―At first, yes, and
then after I moved, not that often. I went—after I moved I got to see them in June
around [T.N.C.‘s] birthday. . . .‖ F.A.C. stated that she visited the children three or four
times between July and December 2010 and that she had visited the children twice
between December 2010 and February 28, 2011. According to F.A.C., her visitation
with the children was ―[s]upposed to be every Tuesday, but [she] cancelled for every
other Tuesday, but because of [her] job, because [she] was working at the time, [she]
couldn‘t come.‖ Regarding whether she had provided and maintained appropriate
housing, F.A.C. stated she had because for the past month, she has lived with a ―lady‖
and that they were renting a house together and splitting the bills since February 14,
2011.6 F.A.C. claimed that she had paid child support when she started working at
Whataburger in December 2010. F.A.C. testified that although she was behind in the
payments by three months in December, she had caught up on her child support
payments.7 However, F.A.C. then stated that she had not paid child support from ―when
5
We note that the service plan required F.A.C. to complete individual therapy at Spoudazo
Resources of South Texas.
6
At the time of the trial on February 28, 2011, F.A.C. had been living in this home for less than a
month.
7
The trial court admitted defense exhibit 1 showing that child support payments had been
9
[she] recently got unemployed until now it hasn‘t been paid.‖ F.A.C. admitted that she
had only participated in the random drug testing twice since April 2010 and claimed that
she had completed parenting class. When asked if she had demonstrated knowledge
of appropriate parenting skills, F.A.C. replied, ―I feel I‘m ready to demonstrate the skill
for my children.‖ F.A.C. admitted that she had failed to complete psychological testing
and that she had not completed all the requirements of the service plan.
F.A.C. testified that her plans for the children included sending them to school,
and ―bettering [herself] to provide a better life for them. . . .‖ F.A.C.‘s residence has two
bedrooms and a ―big living room‖ that can be converted into a bedroom. F.A.C. has a
roommate and the children will either sleep in one of the bedrooms or in the living room,
once it‘s converted into a bedroom. F.A.C. testified that her roommate has four
children—two boys and two girls ages, 14, 13, 12, and 10. F.A.C. believed that she
would be able to get the children to school on time because the school is only one block
away from her residence.
On cross-examination by the children‘s attorney ad litem, F.A.C. stated that
personnel from T.N.C.‘s school had complained about T.N.C. going to school without
socks, but denied any knowledge of T.N.C. attending school without underwear. F.A.C.
blamed the sock incident on the father and claimed she was not present and that he
could not find any clean clothes for T.N.C. to wear. F.A.C. acknowledged that the
school had been complaining about the head lice since the beginning of the school
year. F.A.C. testified that she was aware of the date of the adversarial hearing but still
deducted from F.A.C.‘s salary on December 27, 2010 in the amount of $56.81, on January 3, 2011 in the
amount of $64.85, on January 10, 2011 in the amount of $64.85, on January 14, 2011 in the amount of
$85.38, on January 28, 2011 in the amount of $68.82, and on February 4, 2011 in the amount of $82.77.
10
chose to go to Edinburg the day before the hearing. F.A.C. agreed that she told her
caseworker about using cocaine because the caseworker was about to perform a drug
test on her. F.A.C. did not remember if she had a cell phone showing missed calls from
her caseworker. F.A.C. stated that she has had four or five phone numbers since the
children‘s removal. F.A.C. testified that although she had attended three counseling
sessions, she was unable to complete the program because she ―kept calling to
reschedule and he never answered my call.‖ F.A.C. acknowledged that her counselor
had not released her from the program. F.A.C. stated that she knew that her children
were in foster care ―in this area‖ when she moved to Edinburg on May 23, 2010 and still
made the decision to move. F.A.C. agreed that she had not appeared at two
subsequent hearings, claiming that she ―didn‘t have a vehicle, and no employment for
[sic] to get money to come on the bus.‖ F.A.C. acknowledged that she understood the
terms and the tasks she was required to perform under the service plan.
On direct examination by her trial counsel, F.A.C. claimed that she took care of
T.N.C.‘s lice problem and that the school nurse told her she was doing a good job at
controlling the problem. F.A.C. blamed T.N.C.‘s urinary tract infection on the fact that
T.N.C. would wait to the last moment to urinate and stated that ―Until this day she still
does that.‖ F.A.C. testified that her visitation was scheduled to occur in Beeville, Texas
and that it takes approximately three hours to travel to Beeville from Edinburg. F.A.C.
claimed that the trip was very difficult for her to make because she was working at a
warehouse and she would have been terminated if she asked for time off. When asked
if she had attempted to meet with the psychologist, F.A.C. responded, ―Once, yes.‖
F.A.C. stated that she was unable to ―go all the way to Corpus‖ for the appointment and
11
―they couldn‘t make arrangements for it to be done in Edinburg.‖ F.A.C. testified that
the service plan was inaccurate because it stated that she had not completed any of the
tasks and that she had completed some.
On redirect examination, F.A.C. stated that she ―sometimes‖ thought it might
have been better for her to have stayed in George West to be closer to her children and
that it would have made it easier to visit her children. F.A.C. did not believe that it would
have been easier to complete her service plan, however, because her former employer
would not have given her time off. F.A.C. stated that she thought that moving to the Rio
Grande Valley was good for her children because she had ―better opportunities‖ in the
Valley. F.A.C. denied that domestic violence occurred when she was living with the
father and that she never told any investigators that domestic violence had occurred.
F.A.C. acknowledged that she called the police when she found the words ―I love you‖
written in blood in her living room and that her children were missing.
Pam Johnson, T.N.C.‘s kindergarten teacher, testified that when T.N.C. started
class, her level of education was ―below what a normal kindergarten student comes to
school with. She didn‘t know her colors, her numbers, she didn‘t know T was the first
letter in her name. . . .‖ Johnson stated that typically, a child in kindergarten knows the
letters of their first name, knows how to write their first name, knows their first and last
name, and knows how old they are. Johnson claimed that when they asked T.N.C. how
old she was, T.N.C. did not state the correct age and that T.N.C. did not know her first
and last name. T.N.C. also did not know her siblings‘ names. Johnson stated that
T.N.C. had very poor attendance and that on one occasion when T.N.C. missed the
bus, a ―Mr. James‖ picked T.N.C. up and brought her to school. Johnson said, ―In the
12
20 years I‘ve been teaching, [T.N.C.] came to school as the lowest student I‘ve ever
seen.‖
Regarding T.N.C.‘s hygiene, Johnson explained:
Her hygiene was lacking. Her hair was normally dirty with bugs,
she had an odor about her from what we discovered was urinary tract
infections. On a cold day she‘d come in sleeveless shirt, no jacket.
Sometimes when she did come with a jacket the jacket was very filthy. So
we had issues with that.
Johnson testified that T.N.C. ―smelled pretty strong‖ with the scent of urine on some
mornings, and Johnson sent her to the school nurse on those occasions.
Johnson testified that T.N.C. had twenty-eight absences and was present sixty-
one days. Johnson stated that T.N.C. did not have any major behavior problems, but
she recalled that T.N.C. may have been ―off task.‖ Johnson attributed this issue to
T.N.C.‘s home environment.
Debbie Riddle, the nurse at T.N.C.‘s school, testified that she had contact with
T.N.C. quite often due to the bugs in her hair. Riddle stated that T.N.C. had ―lots of
bugs.‖ According to Riddle, F.A.C. was the primary caregiver and she assisted F.A.C.
with the treatment of the lice. When asked if the lice were ever completely treated,
Riddle replied, ―At times. It was like when I would tell them to clean it up they would for
maybe a day or two, and then here we go again. She‘d have it again three or four days,
and here we go again, next week it was the same old thing. They just wouldn‘t stay on
top of it.‖ Riddle did not believe it was ―normal‖ for the lice to reoccur and blamed the
parents. On cross-examination by the children‘s attorney ad litem, Riddle stated that
the recurring lice problem was a result of ―the parents [not] properly clean[ing] the child,
13
they don‘t get all the eggs out that are left in there that will hatch and start all over again.
They just need to stay on top of it.‖
Riddle stated that T.N.C. had ―an odor about her‖ that Riddle believed to be due
to a urinary tract infection. Riddle discussed the issue with F.A.C. and thought that it
had been addressed; however, the infection kept reoccurring. Riddle stated that it was
not normal for a child T.N.C.‘s age to have such an infection and that the parents would
need to take the child to the doctor.
Veronica Molina testified that she is an investigator with the Department and that
she conducted an investigation involving F.A.C. based on allegations of physical neglect
of T.N.C. and concern for unknown siblings. Molina visited the children on January 24,
2010 at F.A.C.‘s home in George West. Molina said:
Initially it was a very cold day and the children were running around
outside with sundresses, like spaghetti-strapped dresses, and they had no
shoes on. [T.N.C.] was running around with a blanket and was shivering.
The three-year-old [J.P.C.] was just in a diaper, no shirt, no shoes, no
pants outside. All three of the children had dried snot on their nose and
under their eyes; and [T.N.C.] and [C.M.C.] had pink eye.
F.A.C. was not present, but when she arrived, Molina discussed her concerns about the
children‘s attire with her; however, F.A.C. did not change the children‘s clothes. Molina
testified that the children were sent to school with pink eye and that F.A.C. told her she
did not have money to buy any medicine or take them to the doctor. Therefore, the
children‘s pink eye was not being treated.
Molina stated that T.N.C. made an outcry of domestic violence by telling her that
when her parents are mad, ―Dad hits Mommy, Dad has hit Mommy in the face‖ and that
had occurred on more than one occasion. T.N.C. told Molina that she felt angry when
her father hit F.A.C. According to Molina, T.N.C. claimed that when she is punished,
14
she gets ―an ass whipping.‖ Molina explained that she then asked the parents to
provide the following safety measures: (1) appropriately dress the children for the
weather; (2) provide proper medical attention for the children‘s pink eye, address the
lice, and the urinary tract infection; and (3) refrain from any domestic violence in the
home.
Four days after Molina‘s meeting with the parents, F.A.C. called Molina and
informed her that the father had taken the children out of the home to Buda, Texas after
writing ―I love you‖ in blood on the living room wall. F.A.C. reported the incident to the
police department; Molina stated that she confirmed the report with the police
department. On that day, Molina asked F.A.C. to voluntarily place the children out of
the home because Molina discovered that the home was cold and did not have
electricity, cats were ―left unkempt‖ in the home and seemed ―to be living in the home
without being cleaned up after,‖ and the home ―smelled like animals.‖
Molina confirmed that the children were with the father and when the father and
the children returned to George West, the children were removed from F.A.C.‘s home
and placed with Garcia on January 28, 2010. While the children stayed with Garcia,
Molina asked the parents to do the following: (1) turn on the electricity; (2) clean the
home; and (3) fix the safety hazards including the broken windows in the home and the
―big hole‖ in the bathroom floor. On February 19, 2010, the Department received notice
that Garcia ―had been disciplining [T.N.C.] at school in front of others, and [Garcia]
made a threat of violence to the school saying she was going to get her gun and go
shoot up the school and shoot up the parents and C.P.S. people because she was
15
frustrated that she was unable to go to work because she was having to take the
children to the doctor.‖
The children were removed from Garcia‘s home on March 10, 2010, and the
parents were asked to provide another placement for them. T.N.C. and J.P.C. were
placed in the father‘s aunt‘s home in Buda and C.M.C. was placed with F.A.C.‘s
grandmother. Molina testified that the placement for T.N.C. and J.P.C. was not
appropriate due to the conditions of the home—―it was not a good fit for them because
the environment was not very clean and [Molina] noticed hazards.‖ 8 Molina stated that
the Department‘s intent at this point was to work with the family, and the Department
gave F.A.C. more time to find alternative placement for T.N.C. and J.P.C.; however, the
placement ―broke down anyway‖ and the Department had to remove the children.
C.M.C stayed in her placement; however, that placement also eventually ―broke down.‖
Molina testified that when the children were removed, she was unable to contact
F.A.C. and the parents for other possible placements because F.A.C. no longer lived at
the address in the Department‘s records and ―no one knew where she was.‖ Molina
said, ―I made all efforts to try to contact the mother and father to try to get placement.
Unfortunately that could not be done on time until after we removed.‖ According to
Molina, she became aware that F.A.C. spent time out of town in February or March and
that when she made contact with F.A.C. during that time period, F.A.C. was either in
Houston, Edinburg, or Buda. Molina stated, ―She was around, not locally where I could
keep in contact with her to work with her.‖ Molina testified that, based on her
8
On cross-examination, Molina explained, ―Some of the rooms in the home didn‘t have electricity,
so it was nighttime, so we really couldn‘t get a good look at the house on how it looked in the daytime.
The outside had a lot of debris like I would say material just scattered throughout the property. . . . At the
time we didn‘t feel it was good for permanent placement throughout this working with mom.‖
16
conversations with F.A.C., it appeared to her that F.A.C. was aware of the tasks in the
service plan.
Sara Bridge, a conservatorship supervisor with the Department, testified that she
supervises caseworkers and administrative staff and that her ―stage of service deals
with families once the children have actually been removed . . . .‖ She ―handle[s] the
court hearing, the services to the family‖ and monitors the foster or relative placements,
and ―basically, keep[s] tabs on the entire case for approximately a year.‖ Bridge had
been working on F.A.C.‘s case since March 24, 2010.
Bridge stated that F.A.C. had not completed her service plan and was lacking the
following: (1) completion of individual counseling; (2) providing the children‘s original
birth certificates, social security cards, and immunization records; (3) failing to provide
―up-to-date‖ phone numbers and addresses throughout the pendency of the case; and
(4) failing to attend supervised visitation with the children. Bridge also testified that
F.A.C. had made six child support payments since December 17, 2010 but that prior to
that, F.A.C. had not made any child support payments and had a balance of $1,978.18.
Regarding visitation, Bridge said, ―The visitation is sporadic. She attended the first five
to six visits starting April 1st [2010], and then she didn‘t visit again until I believe August
[2010], and then the next visit wasn‘t until December 8th, [2010], and then the next
wasn‘t until January 25th, 2011. August 5th and August 12th.‖ According to Bridge,
F.A.C. attended ten visitations with her children and missed thirty-four. Bridge testified
that F.A.C. was admonished by the trial court that failure to cooperate with the service
plan could be a ground for termination of her parental rights. Bridge identified
17
petitioner‘s exhibit number 2 as the trial court‘s status hearing order wherein ―the family
service plan was adopted and became a court order.‖
Bridge acknowledged that F.A.C. completed the drug assessment but stated that
F.A.C had not completed the psychological evaluation. Bridge testified that two
appointments were made for F.A.C.‘s psychological examination but that F.A.C. failed to
report to either because she was in the Valley at the time. Bridge said, ―Two letters that
were mailed out were mailed to I guess a previous address right before she moved to a
new address. They were being returned to the Department and the doctor‘s office.‖
Bridge agreed that F.A.C. did not have a stable home environment and stated,
I can count at least nine addresses that we are aware of, living with
the father, the grandfather of the children, to living with a boyfriend; that‘s
coming out of counselor‘s notes. She‘s actually living with a boyfriend and
she moves from that home to a friend‘s home. So there has been multiple
addresses that I‘m not even aware of the actual physical address. I just
am told she was living there.
Bridge did not believe that was a proper living environment for the children.
According to Bridge, the children are now ―completely caught up on all their
medicals and dentals.‖ Bridge testified that when T.N.C. was removed from F.A.C.‘s
care, T.N.C. had a urinary tract infection that has been treated and ―within a month her
head lice, her urinary tract infection and the pink eye had been completely cleared up.‖9
Bridge stated that those problems have not reoccurred. Bridge said, ―Since being
placed in a foster home she‘s not had any accidents at school, urinations, she hasn‘t
had any problems with wetting herself.‖ Regarding T.N.C.‘s development, Bridge
stated:
9
On cross-examination, Bridge stated that F.A.C. had reported that she saw lice on T.N.C. at a
visitation on August 12, 2010. However, according to Bridge there is no evidence that T.N.C. actually had
lice and the foster parents took T.N.C. to the doctor and nothing was found.
18
She was extremely delayed when she came into care. She actually
had to be retained in kindergarten, she had to repeat kindergarten this
year because she was so behind. She is doing well. She knows her
colors, her numbers, she can write her name, she‘s helping with writing—
each year they write books, and she writes her paragraph for the book.
She‘s doing very well. She had some patches where she wasn‘t retaining
information, but the repetitiveness of the school being put into after school
programs has really helped her. She‘s really improved.
Bridge testified that there were ―no problems‖ with C.M.C. and J.P.C.; however, C.M.C.
does have a speech impediment, and she is receiving speech therapy. Both children
are also receiving individual counseling due to problems with aggression.
Bridge stated that the permanency plan for the children is termination of the
parental rights and non-relative adoption. The Department contacted the father‘s fifteen
siblings and none are able to care for the children. Bridge did not believe that F.A.C.
has shown that she is capable of caring for the children and that the Department has
made every reasonable effort to return the children to her. In Bridge‘s opinion,
termination of F.A.C.‘s parental rights was in the children‘s best interest.
III. APPLICABLE LAW AND STANDARD OF REVIEW
Involuntary termination of parental rights involves fundamental constitutional
rights and divests the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child‘s right to inherit from the parent.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778
(Tex. App.—Corpus Christi 2006, no pet.). Therefore, termination of the parent-child
relationship must be supported by clear and convincing evidence. In re J.L., 163
S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d at 778. This intermediate standard
falls between the preponderance of the evidence standard of civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847
19
(Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied);
Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 57 (Tex. App.—
Corpus Christi 2003, no pet.).
Before terminating the parent-child relationship, the trial court must find that the
parent committed one of the acts prohibited by section 161.001(1)(A-T) of the Texas
Family Code and that termination is in the child‘s best interest. TEX. FAM. CODE ANN. §
161.001(1)(A-T); id. § 153.002 (West 2008); In re J.L., 163 S.W.3d at 84. A parent
violates section 161.001(1) if she does, among other things, the following: (1)
―knowingly place[s] or knowingly allow[s] the child[ren] to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child[ren],‖
TEX. FAM. CODE ANN. § 161.001(1)(D); (2) ―engage[s] in conduct or knowingly place[s]
the child[ren] with persons who engaged in conduct which endangers the physical or
emotional well-being of the child[ren],‖ id. at § 161.001(1)(E); (3) fails to ―comply with
the provisions of a court order that specifically established the actions necessary for the
parent to obtain the return of the child[ren] who [have] been in the permanent or
temporary managing conservatorship of the [Department] for not less than nine months
as a result of the child[ren]‘s removal from the parent under Chapter 262 for the abuse
or neglect of the child[ren],‖ id. § 161.001(1)(O); or (4) ―constructively abandon[s] the
child[ren] who [have] been in the permanent or temporary managing conservatorship of
the [Department] for not less than six months,‖ the Department ―has made reasonable
efforts to return the child[ren] to the parent,‖ who ―has not regularly visited or maintained
significant contact with the child[ren],‖ and who ―has demonstrated an inability to provide
the child[ren] with a safe environment,‖ id. § 161.001(1)(N).
20
In reviewing the legal sufficiency of the evidence supporting parental termination,
we must ―look at all the evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true.‖ In re J.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002)); In re D.S.P., 210 S.W.3d at 778. We must assume that the trier of fact
resolved disputed facts in favor of its finding if it was reasonable to do so. In re J.L.,
163 S.W.3d at 85. We must also disregard all evidence that a reasonable fact-finder
could have disbelieved or found to be incredible. City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005); In re D.S.P., 210 S.W.3d at 778. ―If [an appellate court]
determines that no reasonable fact-finders could form a firm belief or conviction that the
matter that must be proven is true, then that court must conclude that the evidence is
legally insufficient.‖ In re J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, ―[w]e must determine whether, on the entire
record, a fact-finder could reasonably form a firm conviction or belief that the parent
violated a provision of section 161.001(1) and that the termination of the parent‘s
parental rights would be in the best interest of the child.‖ In re M.C.T., 250 S.W.3d 161,
168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d 17, 28 (Tex.
2002)). Under this standard, we consider whether the ―disputed evidence is such that a
reasonable fact[-]finder could not have resolved the disputed evidence in favor of its
finding. If, in light of the entire record, the disputed evidence that a reasonable fact[-
]finder could not have credited in favor of the finding is so significant that a fact[-]finder
could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.‖ In re J.F.C., 96 S.W.3d at 266.
21
IV. DISCUSSION
By her first four issues, F.A.C. contends that the evidence is legally and factually
insufficient to prove by clear and convincing evidence that she violated section
161.001(1) of the family code by: (1) knowingly placing or knowingly allowing the
children to remain in conditions or surroundings which endangered their physical or
emotional well-being; (2) engaging in conduct or knowingly placing the children with
persons who engaged in conduct which endangered the physical or emotional well-
being of the children; (3) constructively abandoning her children as set out in section
161.001(1)(N); and (4) failing to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of the children
who were in the permanent or temporary managing conservatorship of the Department
for not less than nine months as a result of the children‘s removal from her under
chapter 262 for abuse or neglect of the children. See TEX. FAM. CODE ANN. §
161.001(1)(D), (E), (N), (O).
As a preliminary matter, the Department argues that F.A.C. has failed to preserve
her factual sufficiency challenge to the jury‘s findings because she did not file a motion
for new trial with the trial court as required by rule of civil procedure 324(b)(2). TEX. R.
CIV. P. 324(b)(2). We agree with the Department.
A motion for new trial is required in order to preserve a complaint that the
evidence is factually insufficient to support a jury finding. Id.; Cecil v. Smith, 804
S.W.2d 509, 511–12 (Tex. 1991); In re I.V., 61 S.W.3d 789, 794 (Tex. App.—Corpus
Christi 2001, no pet.), disapproved on other grounds, In re J.F.C., 96 S.W.3d at 267
n.39 (holding that the appellant waived her factual insufficiency complaint by not filing a
22
motion for new trial); see In re M.S., 115 S.W.3d 534, 546 (Tex. 2003) (acknowledging
that the appellant‘s factual sufficiency complaint had been waived because of trial
counsel‘s failure to file a motion for new trial). Accordingly, we conclude that F.A.C. has
not preserved her factual sufficiency complaints, and we will not address those issues.10
See TEX. R. CIV. P. 324; Cecil, 804 S.W.2d at 510; In re I.V., 61 S.W.3d at 794; see also
In re M.S., 115 S.W.3d at 546.
A. Violation of Section 161.001(1)(O)
By her fourth issue, F.A.C. contends that the evidence was legally and factually
insufficient to support the jury‘s finding that she violated section 161.001(1)(O). The
record shows that after a hearing, the trial court appointed the Department as the
children‘s temporary managing conservator and ordered both parents to comply with
each provision of the court order, which set out the actions necessary for the parents to
avoid the restriction or termination of their parental rights. At the time of trial on
February 28 and March 1, 2011, the children had been in the managing conservatorship
of the Department for nearly one year.
The testimony at trial showed that F.A.C. had failed to comply with the provisions
of the trial court‘s order. F.A.C. concedes that the children were in the custody of the
Department for the nine-month period preceding trial and that she did not comply with
all the requirements of the service plan as ordered by the trial court. However, F.A.C.
generally asserts that there was no evidence that the children were removed for abuse
or neglect. F.A.C. then maintains that it was impossible for her to comply with all of the
10
F.A.C. does not contend that her trial counsel was ineffective by failing to file a motion for new
trial. Furthermore, in the context of ineffective assistance of counsel analysis, ―when a motion for new
trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and
rejected.‖ In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).
23
requirements of the service plan for various reasons, including that she moved to the
Valley and the distance was too great for her to comply, the appointments for her
psychological evaluation were not in the Valley, and the Department knew that F.A.C.
lived in the Valley and they failed to transfer any of the services to the Valley or to help
her make travel arrangements to comply with the service plan. Finally, F.A.C. argues
that she did complete some of the requirements of the service plan.
Evidence was presented that the Department became involved in this case after
a report that T.N.C. was missing school, had lice, was unkempt, and smelled of urine.
F.A.C. and the father failed to send clothes to school when requested. T.N.C. suffered
from a recurring urinary and kidney infection. T.N.C. and C.M.C. were suffering from
pink eye that had not been treated because F.A.C. claimed she could not afford to take
them to the doctor‘s office or buy them medicine. There was evidence that the children
were not receiving proper medical attention or having their medication properly
administered. There was also evidence that domestic violence occurred in the home.
There was evidence that F.A.C. and the father were unable to wake the children up for
school and unable to potty train the children.
When Molina went to F.A.C.‘s home, she found the children outside,
unsupervised, and dressed inappropriately for the cold weather. J.P.C. was in his
underwear and was not wearing shoes in the cold weather. The evidence showed that
the home where the children lived with F.A.C. was filthy and needed to be significantly
organized and cleaned. There were broken windows in the home that F.A.C. stated she
was unable to fix and a huge hole in the floor in the bathroom. The home did not have
any electricity and smelled like animal urine. F.A.C. disclosed that she intended to ―go
24
away and start over‖ with or without her children; and, on May 23, 2010, after the
children were removed from her home, she quit her job and moved three hours away to
Edinburg without her children, who stayed in foster care. Finally, while the children
were in the Department‘s custody, F.A.C. failed to provide her address and phone
number to the Department and only visited the children ten times while missing thirty-
four visits.
Molina testified that she attempted to contact F.A.C. and the father by phone to
discuss other relative placements on March 10, 2010, but Molina was unable to reach
them. Molina attempted to contact F.A.C. at the Dairy Queen where F.A.C. was
employed; but no one there knew F.A.C.‘s whereabouts. The Department was unable
to locate or contact F.A.C. and, based on the evidence presented, the jury may have
inferred that the Department was unsuccessful in contacting F.A.C. only because she
failed to inform the Department of her whereabouts.
Molina stated that she had a cell phone number for F.A.C. and that she left
numerous messages on the voice mail, but she did not ―hear from‖ F.A.C. before the
first adversarial hearing. F.A.C. did not attend the adversarial hearing. F.A.C. admitted
that she also missed two subsequent hearings regarding her children. Although she
claimed she did notify the Department of her change of addresses and phone numbers,
F.A.C. admitted that she did not notify the Department within five days as ordered.
F.A.C. testified that she has lived at six different locations and had four or five phone
numbers since the children had been removed. Bridge stated that she heard from
others that F.A.C. had been living in at least nine different locations; however, F.A.C.
did not inform the Department of those locations.
25
Viewing the evidence in the light most favorable to an affirmative finding under
section 161.001(1)(O), we conclude that there was sufficiently clear and convincing
evidence presented to allow a reasonable fact-finder to form a firm belief or conviction
that the children were removed from F.A.C. due to neglect. See In the Interest of
A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (finding
that the evidence was legally and factually sufficient to support the finding that the child
had been removed for abuse or neglect due to the mother‘s ―lack of effort to locate her
child following her release from [police] custody‖ and failure to provide her contact
information with the Department); see also In re K.H., No. 12-05-00077-CV, 2006 Tex.
App. LEXIS 9661, at *14 (Tex. App.—Tyler Nov. 8, 2006, no pet.) (mem. op.) (stating
that evidence was sufficient to show children were removed due to neglect because an
investigator with the Department testified that the case was ―initiated because of
domestic violence in the home and physical neglect of both children‖); In re A.C., No.
12-04-00264-CV, 2005 Tex. App. LEXIS 8137, at *12 (Tex. App.—Tyler Sept. 30, 2005,
no pet.) (mem. op.) (concluding that evidence was sufficient that child was removed due
to neglect where the Department stated ―that there was ‗reason to believe‘ a report
alleging neglectful supervision and physical neglect of both children by the parents‖ and
the Department‘s specialist testified at trial that she ―believed the children were
endangered or at risk because of alleged drug use and the lack of appropriate
housing‖); In the Interest of M.B., No. 07-04-0334-CV, 2004 Tex. App. LEXIS 11209, at
**7–8 (Tex. App.—Amarillo Dec. 14, 2004, no pet.) (mem. op.) (finding that evidence
was sufficient where parents failed to notify hospital of their whereabouts and after
removal of the child failed to visit the child).
26
Next, F.A.C. argues she completed some of the requirements and that it was
impossible for her to comply with all of the requirements of the service plan. Section
161.001(1)(O) states that termination may be based on a parent‘s failure to comply with
the provisions of a court order that specifically established the actions necessary for her
to obtain the return of the children. However, section 161.001 does not have a
provision that allows a parent to provide excuses for failing to complete the court-
ordered services. In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet.
denied). In addition, substantial compliance is not enough to avoid a termination finding
under section 161.001(1)(O). In re T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied) (noting that courts in Texas have refused to find that
substantial compliance with provisions of court order are adequate to avoid termination
finding under subsection (O)); see also In re D.L.H., No. 04-04-00876-CV, 2005 Tex.
App. LEXIS 9288, at *2 (Tex. App.—San Antonio Nov. 9, 2005, no pet.) (mem. op.)
(rejecting the parents‘ arguments that substantial compliance with section
161.001(1)(O) excused their non-compliance).
Here, the court order specifically established the actions necessary for F.A.C. to
obtain the return of the children. Furthermore, at trial, evidence was presented that
although ordered to do so, F.A.C. failed to (1) attend individual therapy, (2) submit to a
psychological evaluation, (3) become fully employed in order to support the children, (4)
provide the children‘s original birth certificates, social security cards, and immunization
records to the Department, (5) notify the Department of her numerous address and
phone number changes, (6) participate in supervised visitations with the children, (7)
27
provide and maintain appropriate housing free of health and safety hazards,11 and (8)
pay child support. F.A.C., herself, admitted at trial that she had not: (1) completed the
individual counseling and had only attended three sessions even though she had not
been released by the therapist; (2) provided the children‘s birth certificates to the
Department; (3) attended her scheduled visitations with the children; and (4) completed
her psychological evaluation. Finally, there was evidence that F.A.C. did not obtain full-
time gainful employment as ordered by the trial court. F.A.C. stated that at the time of
trial, she was not employed full time and was only cleaning houses part time. Thus,
viewing the evidence in the light most favorable to an affirmative finding under section
161.001(1)(O), we conclude that there was sufficiently clear and convincing evidence
presented allowing a reasonable fact-finder to form a firm belief or conviction that F.A.C.
failed to comply with the provisions of a court order that specifically established the
actions necessary for her to obtain the return of her children. Accordingly, the evidence
is legally sufficient to support the jury‘s finding under section 161.001(1)(O).12 We
overrule F.A.C.‘s fourth issue.
B. Violation of Section 161.001(1)(N)
Although the Department only had to prove that F.A.C. committed one violation
of section 161.001, there was also sufficient evidence that F.A.C. also violated section
161.001(1)(N) as explained below. Section 161.001(1)(N) sets out that constructive
abandonment of the children occurs if: (1) the children had been in the permanent or
11
We note that although F.A.C. claimed that she was living in what she considered appropriate
housing, the jury was free to disbelieve her bald assertions.
12
In light of our disposition of F.A.C.‘s fourth issue, we need not address her first, second, and
third issues. See TEX. R. APP. P. 47.1; see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort
Worth 2007, no pet.) (stating that a finding of only one ground alleged under section 161.001(1) is
sufficient to support a judgment of termination).
28
temporary managing conservatorship of the State for not less than six months; (2) the
State has made reasonable efforts to return the children to the parent; (3) the parent
has not regularly visited or maintained significant contact with the children; and (4) the
parent has demonstrated an inability to provide the children with a safe environment.
See TEX. FAM. CODE ANN. § 161.001(1)(N). By her third issue, F.A.C. only argues that
the evidence was insufficient to prove that the Department made reasonable efforts to
return the children to her and that she did not regularly visit or maintain significant
contact with the children. See id. F.A.C. does not challenge the first and fourth prongs
of section 161.001(1)(N). See id.
Here, the Department created and administered a service plan for F.A.C. to
follow with the specific goal of reunification. The service plan stated that the
Department‘s task/service included monitoring and supporting the parents with
completing designated tasks to facilitate family reunification. The evidence showed that
the Department made numerous attempts to assist F.A.C. with completing her service
plan, but that F.A.C. chose to move three hours away from her children and not inform
the Department of her address.
In order to be reunited with her children, F.A.C. was required to follow and
complete the tasks in the service plan. F.A.C. testified that she understood the terms of
the service plan. Molina testified that the Department‘s goal was to work with the family
and that she made ―all efforts to try and contact‖ F.A.C. regarding the children.
Moreover, Bridge testified that she informed F.A.C. that failure to complete the service
plan could result in termination of her parental rights.
29
Regarding visitation, Bridge testified that F.A.C.‘s visitation with the children was
―sporadic.‖ F.A.C. admitted that she did not attend the scheduled visitations with her
children. The jury heard evidence that F.A.C. only attended ten scheduled visitations
with her children and missed thirty-four of those visits. See In re D.S.A., 113 S.W.3d
567, 573–74 (Tex. App.—Amarillo 2003, no pet.) (concluding that the evidence was
legally and factually sufficient to support a finding that the Department made reasonable
efforts to return the child to his incarcerated father but that father failed to attend
visitation and made minimal efforts to complete his service plan); In re K.M.B., 91
S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.) (finding that the State made
reasonable efforts to return the child to the parent by preparing several service plans
designed to ―help‖ the mother, but that the mother failed to complete any of the
services); see also In re D.A., No. 02-09-00460-CV, 2010 Tex. App. LEXIS 7676, at *8
(Tex. App.—Fort Worth Sept. 16, 2010, no pet.) (mem. op.) (―Returning a child to a
parent under section 161.001(1)(N) does not necessarily mean that the child has to be
physically delivered to the individual. ‗[R]easonable efforts‘ to reunite parent and child
can be satisfied through the preparation and administration of a service plan.‖) (internal
citations omitted). Finally, Bridge testified that ―every reasonable effort was made to
return the children to‖ F.A.C. Thus, viewing the evidence in the light most favorable to
an affirmative finding under section 161.001(1)(N), we conclude that there was
sufficiently clear and convincing evidence presented to allow a reasonable fact-finder to
form a firm belief or conviction that the Department made reasonable efforts to return
the children to F.A.C. and that F.A.C. did not regularly visit or maintain significant
contact with the children. Accordingly, the evidence was legally sufficient to support the
30
jury‘s finding that F.A.C. violated section 161.001(1)(N). We overrule F.A.C.‘s third
issue.
C. Best Interest
By her final issue, F.A.C. contends that the evidence was legally insufficient to
support the jury‘s finding that termination was in the children‘s best interest. F.A.C.
argues that Molina‘s testimony that termination was in the children‘s best interest was
not sufficient because Molina failed to articulate any facts or reasons to substantiate her
belief. F.A.C. also complains that the Department did not offer evidence establishing
the wishes or desires of the children, the emotional and physical needs of the children
now and in the future, the physical or emotional danger to the children now and in the
future, her parenting skills, or her acts or omissions that may indicate that the existing
parent-child relationship is not a proper one.
When considering whether parental termination is in the child‘s best interest, the
following non-exhaustive list of factors should be considered: (1) the desires of the
child; (2) the emotional and physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the future; (4) the parenting
abilities of the parties seeking custody; (5) the programs available to assist the parties
seeking custody; (6) the plans for the child by the parties seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions committed by the
parent which may indicate that the existing parent-child relationship is not proper; and
(9) any excuse for the acts or omissions committed by the parent. Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976). The party seeking parental termination is not required to
prove all nine factors. In re C.H., 89 S.W.3d at 27 (providing that these considerations
31
are not exhaustive, ―or that all such considerations must be proved as a condition
precedent to parental termination‖) (emphasis in original); In re J.R.S., 232 S.W.3d 278,
284 (Tex. App—Fort Worth 2007, no pet.) (―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.‖).
Although there is a strong presumption that it is in the child‘s best interest to
allow the natural parent to retain custody, when confronted with evidence to the
contrary, that presumption disappears. In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—
San Antonio 2003, no pet.). Evidence proving one or more of the statutory grounds for
termination may be probative in determining that termination is in the best interest of the
child. In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.–Houston [1st Dist.] 2008, pet.
denied). A best-interest analysis may be based on direct evidence, circumstantial
evidence, subjective factors, and the totality of the evidence as a whole. In the Interest
of T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.) (citing In re C.A.J.,
122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.)). ―A parent‘s unstable
lifestyle, lack of income, and lack of a home may also be considered in a determination
of a parent‘s ability to provide for a child‘s emotional and physical needs and may also
threaten the physical well being of the child.‖ Id.
Here, the children were too young to express their wishes or desires. However,
the evidence showed that while living with F.A.C., the children lacked proper hygiene
and were not provided medical care; in the Department‘s care, the children were
healthy, clean, and up-to-date on all of their medical needs. T.N.C.‘s lice and urinary
tract infection, which were chronic while she lived with F.A.C., were taken care of and
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did not reoccur while in the Department‘s care. Also, T.N.C. was academically behind
other children her age; however, once in the Department‘s care, T.N.C. was ―doing well‖
academically.
Concerning the physical and emotional needs of the children now and in the
future, the evidence established that while in F.A.C.‘s care, the children were not
provided with appropriate medical care. F.A.C. told the Department that she could not
afford to buy medicine for the children or take them to the doctor‘s office. Once the
children were removed from F.A.C.‘s care, the evidence showed that T.N.C.‘s recurring
urinary tract infection ceased, she no longer suffered from lice, and the children
received appropriate medical and dental care. Therefore, the jury could have
reasonably inferred that the children‘s physical needs now and in the future were better
served by the Department rather than by F.A.C. Moreover, there was evidence that
F.A.C. failed to complete many of the requirements of the service plan, including failing
to visit the children as scheduled. This allowed the jury to infer that F.A.C. did not
provide for the children‘s emotional needs while they were in the Department‘s care.
Regarding the emotional and physical danger to the children now and in the
future, the jury found that F.A.C. constructively abandoned her children, and that F.A.C.
did not provide proper care for the children before they were removed. See In re C.A.J.,
122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (―[A] parent's inability to
provide adequate care for the child, lack of parenting skills, poor judgment, and
repeated instances of immoral conduct may also be considered when looking at best
interest.‖) (citing Garza v. Tex. Dep’t of Human Servs., 794 S.W.2d 521, 525 (Tex.
App.—Corpus Christi 1990, no writ); Sanchez v. Tex. Dep’t of Human Res., 581 S.W.2d
33
260, 265–66 (Tex. Civ. App.—Corpus Christi 1979, no writ); Coleman v. Tex. Dep’t of
Pub. Welfare, 562 S.W.2d 554, 557 (Tex. Civ. App.—Tyler 1978, writ ref'd n.r.e.); D.F.
v. State, 525 S.W.2d 933, 940 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd
n.r.e.) (op. on reh‘g); Magallon v. State, 523 S.W.2d 477, 479 (Tex. Civ. App.—Houston
[1st Dist.] 1975, no writ)). F.A.C. allowed the children to go to school with inadequate
clothing, and to play outside in the cold weather in inappropriate attire. F.A.C. did not
treat the children‘s medical conditions, including T.N.C.‘s and C.M.C.‘s pink eye and
T.N.C.‘s urinary tract infection and lice. F.A.C. claimed she could not provide proper
medical treatment for the children. There was evidence that F.A.C. allowed the children
to live in unsanitary and unsafe housing before they were removed, and F.A.C. failed to
make the necessary repairs to the home after the children were removed. F.A.C.
allowed T.N.C. to be truant from school, and F.A.C. went to court for her behavior.
Based on the evidence, the jury was permitted to infer that F.A.C.‘s future conduct
would comport with her prior conduct. Jordan v. Dossey, 325 S.W.3d 700, 732 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied); see May v. May, 829 S.W.2d 373, 377
(Tex. App.—Corpus Christi 1992, writ denied).
The only evidence presented of F.A.C.‘s parenting ability was provided by the
Department. This evidence included that F.A.C. failed to provide an appropriate living
environment for the children and neglected to provide the children with proper medical
care when they were sick. Evidence was also provided that F.A.C. was unwilling or
unable to get T.N.C. to attend school and went to court due to T.N.C.‘s truancy. The
Department also provided evidence that there was physical abuse in the home; T.N.C.
told Molina that her father hit her mother and that she was given an ―ass whipping‖
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when she did something wrong. F.A.C. stated that she does not spank the children and
only disciplines them by making them take a time-out. Evidence was presented that
F.A.C. quit her job locally and moved three hours away from the children after the
children were removed. After F.A.C. moved away, the Department was no longer able
to contact F.A.C. regarding the children. The evidence showed that F.A.C. failed to
inform the Department of her whereabouts and how to contact her and that F.A.C. made
frequent address and phone number changes while her children were in the
Department‘s care.
The evidence showed that the Department provided F.A.C. with several
programs to assist her; however, F.A.C. did not avail herself of many of those programs.
Although F.A.C. claimed that she completed parenting classes, Bridge testified that she
did not believe that F.A.C. had shown that she is capable of caring for the children and
that termination was in the children‘s best interest.
F.A.C. testified that her plans for the children are to better herself and to send the
children to school. F.A.C. claimed that the children would live with her and a roommate
in a two bedroom apartment. However, there was no evidence that F.A.C. had notified
the Department of her new address or that the home was free from health and safety
hazards as required by the service plan. The jury was free to infer that, because F.A.C.
failed to notify the Department of her current address, it was impossible for the
Department to determine whether the home was appropriate for the children.
The Department‘s permanency goal is non-relative adoption. The evidence
showed that the Department had contacted fifteen of the father‘s siblings and that none
were able to care for the children. Evidence was also presented that the temporary
35
placement of the children with relatives and a friend recommended by the parents
―broke down‖ for various reasons and were inappropriate.
While in the custody of the Department, the children have been receiving proper
and appropriate medical care. T.N.C.‘s recurrent urinary tract infections and lice
infestations had stopped and she was attending school. T.N.C. was academically
―delayed‖ when the Department became involved; however, while in foster care, T.N.C.
has improved and has learned her colors, numbers, how to write her name, and is able
to write a paragraph. C.M.C. and J.P.C. are in bimonthly therapy and according to their
counselor are ―doing well.‖ C.M.C. is also receiving speech therapy.
Bridge testified that F.A.C.‘s home environment was not stable because F.A.C.
lived in ―at least nine addresses‖ during the pendency of the case. Again, Bridge was
unable to determine where these addresses were located because F.A.C. failed to
inform the Department of her change of address when she moved. Bridge did not
believe that moving from home to home was a stable environment for the children.
F.A.C. admitted that she has lived at six different addresses since her children were
removed, and she agreed that such a living situation was not a stable environment for
the children.
The jury heard ample evidence, much of which is set out above, of F.A.C.‘s acts
and omissions indicating that the parent-child relationship was not proper. F.A.C. did
provide an excuse for her behavior—she moved three hours away from the children.
However, the jury was free to find that making a choice to move three hours away from
her children is not a proper excuse for F.A.C.‘s behavior and failure to visit her children.
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Viewing the evidence in the light most favorable to the jury‘s finding, we conclude
a reasonable trier of fact could have formed a firm belief or conviction that termination
was in the children‘s best interest. See TEX. FAM. CODE ANN. § 153.002; In re J.L., 163
S.W.3d at 85; In re D.S.P., 210 S.W.3d at 778. We overrule F.A.C.‘s final issue.
V. CONCLUSION
We affirm the trial court‘s judgment.
___________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
3rd day of November, 2011.
37