in the Interest of R.H., F v. M v. and P.H., Children

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00396-CV
___________________________
IN THE INTEREST OF R.H., F.V., M.V., AND P.H., CHILDREN
On Appeal from the 233rd District Court
Tarrant County, Texas
Trial Court No. 233-679089-20
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
R.H.H. (Mother) and N.V.C. (Father) appeal from the trial court’s order
terminating their parental rights to four of their children—R.H. (Ross), F.V. (Finn),
M.V. (Macy), and P.H. (Penny)—and appointing the Department of Family and
Protective Services as the children’s permanent managing conservator.1 In this ultra-
accelerated appeal,2 Mother and Father raise nine issues. We will affirm the judgment
as modified.
I. Background
Mother and Father have seven children: C.V. (Cora) M.V. (Myra), A.V. (Anne),
Ross, Finn, Macy, and Penny, and they had been involved with the Department for a
decade by the time of the 2020 trial in this case. Before the events giving rise to this
case, the Department had investigated Mother and Father numerous times for
neglectful supervision, physical neglect, physical abuse, sexual abuse, and medical
neglect. The Department had also investigated allegations that Myra and Anne were
sex-trafficking victims.
1
We refer to the children using aliases and to other family members by their
relationship to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
2
See Tex. R. Jud. Admin. 6.2(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.
F app. (requiring appellate court to dispose of appeal from judgment terminating
parental rights, so far as reasonably possible, within 180 days after notice of appeal is
filed).
2
In June 2019, the Department removed all but Cora, who was 17 years old at
the time. The investigation leading to the children’s removal started six months earlier
when the Department received reports that then-14-year-old Anne was skipping
school and was involved with a known sex trafficker; that some of the children had
“an issue with lice”; and that the home was unsanitary.
A. Investigation and removal
According to Adrianne Brown, a Department investigator, the Department
commenced the investigation over concerns about the children’s unsafe home
conditions and about Anne’s being a sex-trafficking victim. During Brown’s initial
visit to the family’s home, she observed that the floors had mud and dirt on them and
that there was a “very strong odor of . . . human urine” throughout the home. The
kitchen counters were covered in food and dishes, and there were “tons of bugs and
flies.” Brown checked for bed bugs and found none, but she observed that the
mattresses and sheets were very dirty.
Brown was alarmed about the home’s condition because “[c]hildren shouldn’t
be living in an environment like [that] . . . especially with [Penny’s] having health
conditions. I was worried that they would get sick from the home conditions.” But
when Brown discussed these apprehensions with Mother, Mother “didn’t seem very
concerned” and could not understand why Brown was concerned.
Brown observed that then-five-year-old Penny was “very tiny” and
underweight. Her clothes were tattered and dirty, and her fingernails were “very
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black.” She was unbathed, and her hair was very messy and looked like it had not
been combed in a long time. Brown described Penny as not having any muscle and
her limbs as “just kind of bone and skin.” When Brown voiced these concerns,
Mother responded that Penny’s size was a result of her medical issues. Brown testified
that Penny’s doctors were concerned that Mother was not “following through” with
Penny’s medical care and that Mother was having a hard time following medical
recommendations.
Brown was also troubled because Penny needs round-the-clock supervision and
care because she cannot eat and drink like a normal child. Brown admitted that she
did not know Penny’s medical diagnosis but testified that the child is nonmobile,
nonverbal, and cannot care for herself. When Brown visited the home, Penny was
alone in a room with the door closed and was “kind of half hanging off” a mattress
on the floor.
Brown observed that Ross, Finn, and Macy were very dirty, “just kind of ran
wherever they wanted to,” and “weren’t being watched or supervised.” During
Brown’s visit, Brown talked to then-ten-year-old Ross, who had a “very strong, foul
body odor.” Ross appeared “intellectually delayed” and was thus unable to do a
complete interview with Brown and could not understand many of her questions. Like
Penny, Ross wore clothes that were tattered and dirty, and his fingernails were very
dirty. Brown observed that then-eight-year-old twins Finn’s and Macy’s conditions
were the same—foul body odor; dirty, tattered clothes; and dirty fingernails. Brown
4
described the body odor as “if they hadn’t bathed in a very long time” and stated that
“[i]t was to the point where I was getting sick interviewing them[,] and I was going to
have to leave at one point because I couldn’t stay in there any longer with the odor.”
When Brown addressed the children’s conditions with Mother, Mother responded
that she could not make the children bathe if they did not want to.
Mother was also unable to supervise the children. During Brown’s visit, Brown
saw Ross and Finn run in the street toward the nearby Interstate 35 service road, and
Brown had to tell Mother to stop them. At one point, one of the children “grabbed an
axe and started playing with it while . . . running in and out of the street.” Mother saw
this and did nothing until Brown prompted her to intervene.
Brown confirmed that the family had a lengthy history with the Department
that involved the home’s condition; Cora’s being sexually abused and reporting it to
Mother, who did nothing; Myra’s and Anne’s not attending school; and Myra’s and
Anne’s being sex-trafficking victims. When Brown spoke to Mother about the
possibility that Anne was a sex-trafficking victim, Mother “didn’t really believe that
that’s what was happening” and would say that Anne was “just a runaway.”
Brown spoke to Father by telephone about the physical-neglect and sex-
trafficking allegations. Father responded that he was “never really home,” that
childcare was Mother’s responsibility, and that he had no idea what was going on at
home. When Brown spoke to Anne about Father, Anne “described on numerous
occasions that when she would run away, she was afraid to come home because she
5
knew her father would hit her, slap her, and punch her, and that he had done that any
time she had come home from running away.” Anne also told Brown that she was
afraid to come back home because Father would curse at her and call her names.
Based on the concerns that arose during her investigation, Brown referred the
case to Family-Based Safety Services (FBSS). Mother and Father agreed to work FBSS
services even though the parents thought they were unnecessary.
The FBSS case was open for about six months when the Department received
a report in late May 2019 concerning the parents’ physical and medical neglect of
Penny. The Department and the FBSS caseworker recommended that Penny be
evaluated at Cook Children’s Medical Center due to her weight loss. Justin Green,
another Department investigator, met Penny at the hospital and spoke with hospital
staff, who were worried that the now-six-year-old child was failing to thrive and was
being physically neglected. When Penny arrived at the hospital, her hair was severely
matted; she had a “severe lice infestation”; and she had fungus on two of her toes. By
the time Green arrived, hospital staff “had already tried to treat the lice
infestation . . . and had brushed and cut some of her hair to try to treat the lice.”
Green observed that Penny was severely underweight and malnourished.
As part of his investigation, Green spoke with both parents about Penny’s
failure to thrive and the lice infestation. Even though Penny weighed a mere
25 pounds, her parents seemed oblivious that her weight was an issue or that she was
6
failing to thrive. As for the lice, Mother told Green that she was planning to take
Penny to get a haircut to treat the lice.
Green was surprised that Mother and Father were not concerned about
Penny’s weight because of the family’s Department-related history, which included
Penny’s being diagnosed with failure to thrive at three months old. Since then, the
Department had opened cases because it was concerned that Penny was malnourished
and that all the children were being physically neglected.
Based on Green’s investigation regarding Penny, it appeared to Green that
Mother and Father were not making progress regarding any of the children during the
FBSS case, even though the case had been going on for six months. After Green’s
investigation, “[t]he decision for removal was put forth through FBSS,” which “had
[a] consistent history with the family, . . . had consistent issues and concerns with the
physical neglect of the children, lack of adequate supervision of the children, the
concerns for the -- sex trafficking of [Myra] and [Anne].”
In June 2019, the Department sued for conservatorship of Myra, Anne, Ross,
Finn, Macy, and Penny and to terminate Mother’s and Father’s parental rights to
them. The children were removed from the parents, and the trial court signed an
order appointing the Department as the children’s temporary managing conservator.
7
B. The trial
The case was tried to the bench over two days in October and November
2020. 3 At the start of trial, the Department announced that it intended to “nonsuit as
to [Myra and Anne]” and that it would elicit testimony about why the Department
believed that a nonsuit was in the girls’ best interest.
Brown and Green testified regarding the Department’s investigation leading to
the children’s removal. The trial court also heard testimony from Maribel Leal (a
Department local permanency specialist who had worked on the case since October
2019); Julie O’Brien (the case’s permanency supervisor); Penny’s foster mother; and
Father. Mother did not testify.
i. Myra and Anne
Myra turned 17 during the trial, and Anne turned 16 just after the trial. The
Department believed that both girls were sex-trafficking victims. At one point, both
girls had been associating with a rumored trafficker who had admitted to sleeping in a
bed with the two girls. The Department suspected that he was “prostituting the girls.”
When the Department confronted Mother with its suspicions, she was unconcerned
about the girls’ association with the man, as well as their association with another
3
In April 2020, the Department timely moved the trial court to retain
jurisdiction for an additional six months so that Mother and Father could complete
the service-plan requirements necessary for the children’s return. See Tex. Fam. Code
Ann. §§ 263.401, .403(a-1). The trial court granted the motion on May 18, 2020, and
extended the case’s dismissal date to November 13, 2020. The trial commenced on
October 2, 2020.
8
suspected sex trafficker. Father claimed that he was not aware of the sex-trafficking
concerns until the first day of trial.
Both girls had a history of running away from home. Mother and Father had
no control over them and admitted to Leal that the girls would just come and go.
Father had kicked them out of the house several times over the past few years. During
the 17 months the girls were in the Department’s care, they ran away several times
and were last in the Department’s care in April 2020. At the time of trial, neither the
Department nor Father knew where the girls were. Leal testified that Myra and Anne
did not trust the Department and that they refused to meet with her because they
feared she would put them back into foster care.
Traffick911—an advocacy group that works with sex-trafficking victims and
provides them with medical services, counseling, help, and assistance—had been
working with the girls for years and believed that they were human-trafficking victims.
The girls had a close relationship with the organization, but since their removal by the
Department, the girls had refused to meet with anyone from Traffick911 because they
feared that the organization would turn them over to the Department, which would
put them back into foster care. Traffick911 believed that the Department’s
involvement was “keeping [the girls] on the run” and was preventing
Traffick911 from being able to work with the girls and provide them with services.
Traffick911 urged the Department to dismiss the termination case regarding Myra and
Anne because Traffick911 believed that the girls would be willing to engage with the
9
organization again and get the services and help they needed. Both Leal and O’Brien
thus believed that it would be in the girls’ best interest for the Department to dismiss
them from the case.
Based on Mother’s and Father’s attitudes toward Myra’s and Anne’s behavior,
Leal was concerned that Macy—who herself was showing signs of having been
sexually abused—might engage in the same behavior as her older sisters. Leal further
opined that she was concerned that the parents’ lack of concern or awareness that
Myra and Anne were trafficking victims put all the children at risk of being trafficked.
ii. Ross, Finn, and Macy
At the time of trial, Ross was 12 years old, and Finn and Macy were 10 years
old.
Leal testified that Ross was doing well. He was in the seventh grade and was
attending class in person. Leal described Ross—who is in the special-education
program at school—as “verbal” but “not able to have direct conversation with you.”
Ross has hearing issues and thus has a cochlear implant. Ross is now potty trained but
still has bedwetting problems. He takes sleep medication and receives speech,
occupational, physical, and behavioral therapy.
Just before trial, Ross had moved to a new foster home and was not placed
with any of his siblings. Ross had earlier been placed with Macy, but he had started
behaving inappropriately with her and had developed behavioral problems. Ross’s
behavior at home—which Leal described as “constantly in everyone’s face and
10
want[ing] all the attention”—prevented Macy from getting the attention that she
needed. But after Ross moved to a new foster home, Macy was able to get individual
attention, and “she’s loving that.”
Although Macy was “doing really well” in her foster home, she struggles with
her hygiene routine. Her foster mother makes sure that Macy stays clean. Macy is
medicated for depression and receives “regular” and occupational therapy. Macy also
showed signs of having been sexually abused before she came into care. Macy’s foster
mother wants to adopt her.
Macy’s twin brother Finn was not in an adoption-motivated home but was in a
home that deals with special-needs children. He is in special-education classes,
receives behavioral counseling, and receives speech, physical, and occupational
therapy. Finn had been on three mental-health medications but was able to get off of
them while he was in the foster home. But he was still taking medication for
bedwetting.
Ross and Finn had originally been placed together, but because of problems
with that foster home, the brothers had to be separated. The Department’s plan is to
move Ross and Finn into an adoption-motivated home together.
iii. Penny
Penny’s foster mother (Foster Mother)—who before becoming a stay-at-home
mom had worked as a pediatric occupational therapist—first met Penny while Penny
was in the hospital in June 2019. Both Foster Mother and Leal confirmed Green’s
11
account of Penny’s condition at the hospital: her lice-infested hair that was so severely
matted that hospital staff had to cut it to treat the infestation; her sallow, yellowish
skin; and her extreme malnourishment. At 25 pounds, Penny was the size of a two-
year-old. At the hospital, Penny, who is developmentally delayed and nonverbal, did
not make much eye contact or “really show any sort of interaction with her
surroundings.”
Penny has been diagnosed with global developmental delay, failure to thrive,
toenail fungus, encephalopathy, severe malnutrition, swallowing dysphagia, and
epilepsy. Penny suffers from epileptic seizures, and her swallowing dysphagia inhibits
her ability to swallow food. If Penny “attempts to take anything by mouth that is not
of an approved thickness or consistency, she can aspirate, which would cause the
substance to go into her lung[s] and cause pneumonia.” As a result of this condition,
Penny is fed through a gastric tube—or G-button—which doctors surgically placed
during her hospitalization. Operating, cleaning, and changing the G-button requires
special training that Foster Mother received at the hospital before bringing Penny
home.
Penny’s medical conditions require round-the-clock supervision. She is
nonambulatory and has to use a wheelchair as well as other medical equipment such
as leg braces, a stander, a hospital bed, a special car seat, and incontinence and feeding
supplies. Penny’s medical team includes a primary-care physician, an audiologist, an
eye specialist, a neurologist, a geneticist, and an endocrinologist.
12
At the time of trial, Penny was seven years old and had lived with Foster
Mother since being released from the hospital nearly 16 months before. During that
time, Penny’s weight had doubled and her body-mass index was appropriate for her
age. Penny had also gained strength, was “able to sit up from a supine position,” and
could roll “from prone to supine.” She had started showing some “precursor skills to
crawling,” had started making eye contact, and had begun laughing when things were
funny and crying when she was in pain, which were emotional reactions that Foster
Mother “did not see at the very beginning when she came into [Foster Mother’s]
care.”
Leal testified that Penny is currently healthy, her clothes are always clean, and
her hair is always brushed and adorned with a bow. Foster Mother reported that
Penny was as happy and healthy as she could be. Foster Mother has a strong bond
with Penny, loves her, and wants to continue to be her placement.
Penny is the only foster child in Foster Mother’s care. Penny cannot be placed
with her siblings because she requires such a high degree of specialized care, which
Foster Mother can provide. The children’s foster families are able and willing to allow
the children to see each other.
iv. Mother and Father
Mother and Father love their children. The children appear to love Father, and
Father and the children appear to be bonded.
13
Mother is a stay-at-home mom and the children’s primary caretaker. Father
works “all the time” and is at home only in the afternoons. Father has had the same
job for 22 years and makes $15 an hour. Father owns the family’s home and is willing
to buy a larger home if necessary.
According to Mother’s psychological evaluation, which was admitted into
evidence at trial, Mother has “very limited cognitive skills and is not likely to
appropriately make decisions in the best interest of herself and her children,” and “[i]t
is likely that [she] will need supervision and support with her children and should not
be in a decision-making and primary caretaking capacity.” Mother’s “limited abilities
could be addressed with some services, but it is unlikely that her abilities will improve
greatly.”
The psychologist who examined Mother diagnosed her as “borderline
intellectual functioning.” Among other things, the psychologist recommended that
Mother “participate in community-based services that give her a healthy outlet to talk
about her concerns and connect with others”; “participate in parenting skills
curriculum and if possible have a parenting mentor to assist her in understanding how
to parent effectively”; and “have supervised contact with her children, provided that
the contact is not counter-indicated by the child’s treatment plan.”
Leal believed that Mother was incapable of caring for the children not because
of her intellectual abilities but because she lacked the desire and capability to do so.
14
Father’s psychological evaluation, which was also admitted into evidence, states
that
[Father] appears to be dealing with the issues of the CPS case, and is
having feelings of mistrust and social alienation, but he does not have
the skills to improve the social relationships in his life and may be
dealing with the reality that his wife is not able to adequately help him
resolve the issues going on in the family. [Father] would likely need
substantial support from others in order to have a full-time caregiving
role for his children. He has long been focused on the “provider role”
and has not been active in the daily parenting of the children, leaving
those matters to his wife. He would likely continue to be supportive in
any possible capacity for his children, but not well-suited for a daily
caregiving role.
The psychologist also diagnosed Father as “borderline intellectual functioning.”
According to Leal, Father is not willing to make any changes to his parenting
role, and he was unwilling to reach out to family or neighbors for help. Father
testified that he and Mother had done everything the Department had asked them to
do and that he thinks they are much more capable of taking care of the children than
they were before the children’s removal. He claimed that he and Mother were willing
to do whatever they needed to do to take care of the children, including getting them
to medical and therapy appointments and making sure that they are fed. He disagreed
with the Department that he and Mother cannot take care of the children.
v. The family’s history with the Department
As noted, the family has a lengthy history with the Department, which since
2010 had handled more than 15 “intakes” involving the family. According to O’Brien,
15
the case’s permanency supervisor, the Department had opened more than ten cases
involving Myra and Anne.
The first FBSS case involving the family was opened in 2011 and involved
concerns about insufficient weight gain and care of Finn and Macy, who were five
months old at the time. The next FBSS case was opened in December 2016 based on
a referral regarding allegations of physical and medical neglect of Macy. The case
remained open for nine months until the Department stopped working with the
family because the family had “reached a plateau,” and the Department did not feel
that it could provide any more services or help for the family. At that time, the
Department felt that the children were still at risk and that the family’s issues were
unresolved. The issues in that case were the same that the Department was working
on with the parents in this case—issues the parents still had not addressed, even
though by the time of trial, this case had been pending for about 17 months.
According to O’Brien, when the Department was involved with the family in
the past, the children would gain weight and the parents would improve the
“sanitation and appropriateness of the home,” but when the Department “was out of
the case” the Department would receive new referrals expressing the same concerns
about the family. Based on the Department’s involvement and history with the family,
O’Brien believed that the children were at substantial risk if Mother’s and Father’s
rights were not terminated because the children’s medical and developmental needs
would not be met, and the children would not continue to thrive.
16
vi. The parents’ service plans and visits with the children
When Leal took over the case in October 2019, she thought that the most
important services for Mother and Father to complete were improving their parenting
skills and engaging with and parenting the children during visits. The parents’ service
plans included attending visits with the children; undergoing drug testing; completing
counseling; maintaining contact with Leal; attending the children’s medical
appointments; having stable housing; having stable income; and participating in a
special parenting class. Additionally, the parents were required to “comply with
recommendations from . . . medical professionals, including any support classes or
education classes to help manage their children’[s] needs” and to “demonstrate they
can provide for their children’s medical, emotional, therapeutic, and physical needs
during visitations.” The trial court had ordered that the parents could have
unsupervised visitation in their home if they could “demonstrate they can meet all
medical and physical needs of [the children] without assistance from . . . medical or
other professional staff during at least four consecutive supervised visits”; “show their
ability to brush [Penny]’s teeth, brush her hair, change her diaper, use her wheelchair,
do G-button feedings, and work on the occupational therapy and physical therapy
goals for [Finn] and [Ross]”; and “demonstrate they have a safe and stable location for
the unsupervised visits.”
17
Although the parents satisfied most of the plan’s requirements 4—they tested
negative for drugs; attended visits and medical appointments; maintained contact with
Leal; maintained safe, stable, and appropriate housing; completed counseling; and
Father maintained his job—they failed to demonstrate that they could parent the
children and care for their needs.5 During visits with the children, the parents
struggled to interact with and to supervise them; the children were “all over the place
sometimes” and would leave the visitation room. Leal would have to prompt the
parents to retrieve them, and the parents’ engagement and interactions with the
children took “a lot of prompting” by Leal. During these supervised visits, the parents
were unable to demonstrate that they could care for Penny’s needs (brushing her hair
and teeth, changing her diaper, and feeding her through the G-button) and thus never
progressed to unsupervised visitation.6 And even though Leal had explained Penny’s
4
The Department admitted that for reasons beyond the parents’ control, the
parents could not complete the parenting and trafficking-awareness classes.
5
Before the COVID-19 pandemic, Mother and Father attended all the
children’s medical appointments. The pandemic eventually prevented the parents
from attending those appointments, but Leal updated the parents after appointments
and gave them notes. The pandemic also caused the suspension of in-person visits
with the children for a time, but the parents attended virtual visits until in-person
visits resumed.
6
The parents received G-button training at Cook Children’s, but Leal said that
the training was unsuccessful. Foster Mother was present during some of the parents’
visits with Penny and tried to teach them how to use and care for Penny’s G-button.
Foster Mother observed that Mother and Father did not seem to retain what she had
taught them and “kind of passed off the responsibility onto [Cora, their eldest child,]
instead of taking the initiative to do it themselves.”
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swallowing disorder to the parents, during a visit three weeks before trial, the parents
tried to rinse Penny’s mouth out with water, which concerned Leal because she had
warned the parents about the risk that Penny could aspirate.
Leal worked one-on-one with the parents to inform them and to educate them
on each of the children’s needs. She had hoped that with the one-on-one coaching the
parents would become more engaged “in wanting to know about what they could
change or do better.” But when Leal had asked Mother and Father to explain each
child’s needs, neither parent was able to fully explain them. Mother, the main
caregiver, had neither demonstrated to Leal that she knew what was required on a
day-to-day basis to care for the children nor shown any interest in learning.
Leal had no reason to believe that Father “would do anything differently than
what he has done in the past, which [was] to be mainly a provider.” When questioned
at trial regarding each of the children’s specific needs, Father was able only to
generally describe each child’s medical condition and was unable to name their
medical providers or describe their medical needs, treatments, and therapies. He
admitted that although he had attended visits each week, he had never asked about
the children’s physical, emotional, and medical needs.
Leal did not believe that Mother has the intellectual capacity or desire to meet
her children’s specialized needs or that Father can meet those needs. O’Brien
described Mother and Father as “borderline functioning” but, like Leal, she thought
their inability to meet their children’s needs was a combination of unwillingness and
19
lack of capacity. In past cases, Mother and Father had shown that they were unwilling
to take care of their children.
Given the Department’s extensive history with the family and its concerns
about neglectful supervision, Leal did not believe that the Department’s concerns had
been addressed throughout this latest case, which had lasted nearly two years. During
the case, the parents had not demonstrated that they would change the way they
parent and supervise the children and had not admitted that their parenting skills
could improve. Although Mother and Father love the children and participated in
services, they had not progressed enough to address the Department’s concerns and
to prove that they could meet the children’s needs and provide for them.
Leal believed that termination of Mother’s and Father’s parental rights to the
children was in the children’s best interest because the parents were unable to meet
their children’s special needs and were unwilling to make the significant life changes
necessary to enable them to take care of their children.
vii. The trial court’s ruling
As promised, the Department moved to dismiss the termination case as to
Myra and Anne, and the trial court granted the motion. The trial court found by clear
and convincing evidence that termination of Mother’s and Father’s parental rights to
Ross, Finn, Macy, and Penny was in the children’s best interest and that the
Department had established by clear and convincing evidence the conduct grounds
under Subsections (D) (endangering environment), (E) (endangering conduct), and
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(O) (failing to complete service plan). See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (O), (b)(2). The trial court also found that Mother had failed to prove by a
preponderance of the evidence that she was unable to comply with a court-ordered
service plan and that despite making a good-faith effort, her failure to comply was not
her fault. See id. § 161.001(d). The trial court thus terminated Mother’s and Father’s
parental rights to the children and appointed the Department as the children’s
managing conservator.
C. Mother and Father appeal
Mother and Father timely filed a notice of appeal and raise nine issues.7 In their
first, second, and sixth issues, they complain that the evidence was legally and factually
insufficient to support the trial court’s conduct and best-interest findings. In their
remaining issues, they complain that the trial court erred by failing to make a finding
that Mother and Father were unable to comply with a court-ordered service plan
despite making a good-faith effort and that their failure to comply was not their fault
(issue three); by failing to give the parents more time to complete their service plan
(issue four); by admitting evidence regarding Myra and Anne (issue five); by finding
that Father’s parental rights should be terminated because he failed to comply with
provisions of a court order specifically establishing the actions necessary for Mother
7
In the trial court, Mother and Father each had a court-appointed attorney. On
appeal, they are jointly represented by a retained attorney who filed a single brief on
their behalf.
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to obtain the return of the children under an invalid Family Code section8 (issue
seven); by admitting into evidence Mother’s psychological examination (issue eight);
and by failing to provide Mother with an attorney ad litem (issue nine).
We will address these issues out of order because doing so aids in our
disposition of the appeal.
II. Appointment of Counsel under Family Code Section 161.003
In their ninth issue, the parents assert that because Mother’s psychological
evaluation states that she has limited cognitive skills and is borderline intellectual
functioning, Family Code Section 161.003(b) required the trial court to appoint
Mother an attorney ad litem. See id. § 161.003(b). The parents argue that “an attorney
ad litem should have been appointed with respect to any cognitive or intellectual
deficit so as to properly ensure Mother’s true needs were carried out during the
pendency of this case and towards the ultimate goal of reunification.” The parents
8
Paragraph 7 of the trial court’s termination order is titled “Termination of
Respondent Father[’s] . . . Parental Rights.” In Subparagraph 7.2.3, the trial court
found that Father “failed to comply with the provisions of a court order that
specifically established the actions necessary for the mother to obtain the return of the
children . . . pursuant to § 161.00(b)(1)(O), Texas Family Code.” [Emphases added.]
See Tex. Fam. Code Ann. § 161.001(b)(1)(O). The Department contends that these are
clerical errors and urges us to modify the judgment. We agree that these errors are
clerical, and we will thus modify the trial court’s judgment to correct them. See In re
L.F., No. 02-19-00421-CV, 2020 WL 2201905, at *4–5 (Tex. App.—Fort Worth, May
7, 2020, no pet.) (mem. op.); In re D.M., No. 04-14-00059-CV, 2014 WL 2917458, at
*3–4 (Tex. App.—San Antonio June 25, 2014, no pet.) (mem. op.); see also Tex. R.
App. P. 43.2(b).
22
contend that the trial court’s failure to appoint Mother an attorney ad litem violated
Mother’s due-process rights.
Section 161.003 allows termination of a parent’s rights if the parent has a
mental or emotional illness or mental deficiency that renders her unable to provide for
her child’s physical, emotional, and mental needs until the child’s eighteenth birthday.
See id. § 161.003(a). The trial court must appoint an attorney ad litem to represent the
parent “[i]mmediately after the filing of a suit under [Section 161.003].” Id.
§ 161.003(b).
Here, the Department did not seek to terminate Mother’s parental rights under
Section 161.003; it sought to terminate her rights under Section 161.001. See id.
§§ 161.001, .003. The trial court was thus not required to appoint Mother an attorney
ad litem under Section 161.003(b). See id. § 161.003(b); cf. In re J.J., No. 02-20-00218-
CV, 2020 WL 7639579, at *5 (Tex. App.—Fort Worth Dec. 23, 2020, no pet.) (mem.
op.) (“Section 161.003 is not the exclusive way to terminate the parental rights of
someone with a mental illness or deficiency.”). The trial court did, however, appoint
attorneys ad litem for Mother and Father a few days after the Department sued to
terminate their parental rights, presumably because they were indigent and were thus
entitled to appointed counsel. See Tex. Fam. Code Ann. § 107.013(a). These attorneys
represented the parents through trial. We overrule parents’ ninth issue.
23
III. Extension of Time to Complete Parenting Plan
In their fourth issue, Mother and Father complain that the trial court erred by
“failing to extend the time to provide [them] the ability to complete the final
requirement of their parenting plan.”
As the June 8, 2020 statutory dismissal date was approaching, the Department
moved the trial court on April 29, 2020, to retain jurisdiction and to set a new
dismissal date. See id. §§ 263.401, .403(a-1). On May 18, 2020, the trial court granted
the motion and extended the case’s dismissal date to November 13, 2020. The trial
commenced on October 2, 2020.
The parents contend that because they completed all services except those not
available to them and because the Department’s witnesses testified that the parties
performed all services requested of them before COVID-19 restrictions were put in
place, the trial court should have extended the time for the parents to complete their
service plans. But Mother and Father did not ask the trial court for more time to
complete their services. They have thus failed to preserve this issue for our review. See
Tex. R. App. P. 33.1(a)(1)(A) (explaining that to preserve a complaint for appellate
review, a party must present to the trial court a timely request, objection, or motion
that states the specific grounds for the desired ruling, if not apparent from the
request’s, objection’s, or motion’s context). We overrule parents’ fourth issue.
24
IV. The Trial Court’s Evidentiary Rulings
The parents’ fifth and eighth issues challenge the trial court’s admission of
evidence. In their fifth issue, the parents complain that the trial court erred by
admitting evidence regarding Myra and Anne. In their eighth issue, the parents
complain that the trial court erred by admitting Mother’s psychological examination.
A. Evidence regarding Myra and Anne
The parents claim that the trial court erred by admitting evidence about Myra
and Anne and by “considering it as evidence of the parents’ inability to care for their
children when all evidence indicated the Department had temporary managing
conservatorship of the girls for seventeen months” because the Department later
dismissed the termination case as to Myra and Anne and returned them to the parents.
The parents did not object to the admission of any evidence regarding Myra
and thus waived any appellate complaint concerning the admission of such evidence.
See Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1); Bushell v. Dean,
803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). Mother and Father each objected to
Leal’s testifying regarding Anne’s association with suspected sex traffickers. The
parents argued that such evidence was irrelevant to the termination of their parental
rights to Ross, Finn, Macy, and Penny because the Department had represented that it
was going to dismiss the case as to Anne. In response, the Department explained that
Leal’s testimony about Anne “speaks to the overall need to protect all of these
25
children, including a young female child, [Macy], and what dangers might be posed to
her if she were returned home.” The trial court overruled the parents’ objections.
We review a trial court’s rulings in admitting or excluding evidence for an abuse
of discretion. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015).
And as the long-established formulation has it, a trial court abuses its discretion if it
acts without reference to any guiding rules or principles—that is, if it acts arbitrarily or
unreasonably. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004). Just because we might have ruled differently
under the circumstances does not mean that we can hold that a trial court abused its
discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995);
see Low, 221 S.W.3d at 620. If the record shows any legitimate basis for an evidentiary
ruling, we must uphold that ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d
35, 43 (Tex. 1998).
Here, although the Department indicated that it intended to dismiss its
termination suit as to Myra and Anne, Leal’s testimony regarding Anne’s association
with suspected sex traffickers was relevant to at least two of the factors the trial court
could consider in determining whether termination was in the four younger children’s
best interest: the parents’ parenting abilities and the possible future emotional and
physical danger to the children. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). We thus conclude that the trial court did not abuse its discretion by allowing
26
testimony about Anne’s association with suspected sex traffickers, and we overrule
the parents’ fifth issue.
B. Mother’s psychological evaluation
The parents next complain that the trial court erred by (1) admitting Mother’s
psychological evaluation into evidence and allowing Leal to “read into the record a
sliver of an opinion . . . rendered by an unqualified expert containing a blanket
statement that . . . Mother was unable to care for her children based on her
psychological evaluation” and (2) by overruling “counsel’s objection as to [the] right
to cross-examination.”
Here, Mother’s and Father’s psychological evaluations and accompanying
business-records affidavit were served on the parents more than 14 days before trial.
See Tex. R. Evid. 803(6), 902(10). Neither parent raised a pretrial objection. When the
Department initially offered them into evidence at trial, Mother stated that she had no
objection. Father, however, lodged the following objection in an exchange with the
trial-court judge:
[Father’s attorney]: Your Honor, I believe -- I believe they are self-
authenticated in the sense of we don’t need a Business Records Affidavit
or a custodian of records to come present these; however, I’m going to
object to any attempt to interpret any of -- anything that’s being said or
was stated within the -- the medical records themselves.
THE COURT: So you’re preempting the objection?
[Father’s attorney]: Well, I’m objecting to them coming in. I do have an
objection.
27
THE COURT: Okay. Make sure I understand. You said that -- you said
-- it sounded like you contradicted and I just want to make sure. You
said that they’re self-authenticating. You said that you have no objection
to them --
[Father’s attorney]: Well, they’re just self-authenticating with regards to
we don’t need a medical records -- a custodian of records to testify these
are the actual records, but for any other purpose, I’m objecting to them.
The trial court then admitted the evaluations and affidavit into evidence.
To preserve a complaint for appellate review, a party must present to the trial
court a timely request, objection, or motion that states the specific grounds for the
desired ruling, if not apparent from the request’s, objection’s, or motion’s context.
Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this,
error is not preserved. Bushell, 803 S.W.2d at 712. A specific objection is one that
enables the trial court to understand the precise grounds so as to make an informed
ruling and that affords the offering party an opportunity to remedy any defect, if
possible. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Campbell v. State,
85 S.W.3d 176, 185 (Tex. 2002); McDaniel v. Yarbrough, 898 S.W.2d 251, 252 (Tex.
1995). To be specific, an objection must “clearly and distinctly” make the trial court
aware of the party’s complaint. Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d
864, 868 (Tex. 2007).
Here, Mother did not object to the psychological evaluations and thus failed to
preserve her complaint regarding their admission. See Tex. R. App. P. 33.1(a)(1)(A); see
28
also Tex. R. Evid. 103(a)(1); Bushell, 803 S.W.2d at 712. We overrule this portion of the
parents’ eighth issue.
Father did not dispute that the psychological evaluations were admissible under
Texas Rule of Evidence 902(10). See Tex. R. Evid. 902(10). His objection—to any
attempt to interpret the records and to use them “for any other purpose”—was not
specific enough for the trial court (or us) to understand the nature of his complaint.
To the extent that Father’s objection could be construed as complaining that the
psychological evaluations were inadmissible hearsay, that complaint does not comport
with the complaint Father makes on appeal—that the psychologist was an unqualified
expert. Father has thus failed to preserve this complaint for our review, and we
overrule this portion of the parents’ eighth issue. See Tex. R. App. P. 33.1(a); F.C. v.
Tex. Dep’t of Family & Protective Servs., No. 03-19-00625-CV, 2020 WL 101998, at
*5 (Tex. App.—Austin Jan. 9, 2020, no pet.) (mem. op.).
After the trial court admitted the psychological evaluations, the Department
asked Leal to read aloud portions of Mother’s evaluation, which Leal began to do
verbatim. Mother then objected, explaining that she believed that Father was correct
before: “I don’t think this is the proper sponsor. We cannot cross-examine [Leal]
based on what this counselor wrote. If the counselor was here, I think all that
language comes in, but as of right now, I think it cannot come in through the
caseworker.” The Department responded
29
And, Your Honor, I believe these are business records. They’re records
that are kept in the regular course of the business, they’re made in the
regular course of her business, and what’s contained in them is free to be
read into the record. It’s not hearsay because it is authenticated and it is
an exception to the hearsay rule under the business records predicate.
I’m not asking [Leal] to interpret any of these, but to simply read the
words that are written on this page.
Father agreed with Mother “with regards to any interpretation” and added,
I haven’t any further objection, and I agree with [Mother] with regards to
any interpretation. Any interpretation with regards to these, they’re
trying to assume -- or trying to presume anything from the reading other
than just plain reading and moving on, that’s one thing. But if [the
Department]’s trying to -- [the Department]’s going to try to cross-
examine [Leal] on these, then I’m going to object.
The trial court overruled the objection.
As noted, a party must make a timely objection to preserve a complaint for
appellate review. See Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). An
objection is timely if made at the point evidence is offered and before the evidence is
admitted. See Tex. R. Evid. 103; Bushell, 803 S.W.2d at 712. An objection to evidence
that was previously admitted without objection comes too late. Perry Homes v.
Alwattari, 33 S.W.3d 376, 386 n.10 (Tex. App.—Fort Worth 2000, pet. denied).
On appeal, the parents assert that the trial court erred by overruling this
objection “as to [the] right to cross-examination of the witnesses’ statement that . . .
Mother was ‘unable to care properly for her children.’” As best we can tell, the
parents’ trial objection and complaint on appeal appear to be that the trial court’s
admission of the psychologist’s evaluations under the business-records exception to
30
the hearsay rule deprived them of their right to cross-examine the psychologist who
examined the parents and prepared the evaluations. But by the time Mother and
Father lodged this objection, the evaluations had already been admitted into evidence
and their objection was too late. See id. We thus overrule the remainder of the parents’
eighth issue.
V. Evidence Supporting Termination of Mother’s and Father’s Parental Rights
In their first, second, and sixth issues, Mother and Father challenge the legal
and factual sufficiency of the evidence to support the trial court’s findings (1) that
they violated the two endangerment grounds in Family Code Section 161.001(b)(1)(D)
and (E); (2) that they failed to complete their service plan; and (3) that termination of
their parental rights was in the children’s best interest. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E), (O), (b)(2).
A. Burden of proof and standards of review
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: (1) that the
parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and
(2) that termination is in the child’s best interest. Id. § 161.001(b); In re E.N.C.,
384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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.” Tex. Fam. Code
Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
31
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that
the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. Id. We disregard all evidence that a reasonable
factfinder could have disbelieved, and we consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See id. The factfinder is the sole judge of the witnesses’ credibility
and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that the parents
violated a predicate ground listed in Section 161.001(b)(1) and that the termination of
the parent–child relationship would be in the children’s best interest. Tex. Fam. Code
Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder
32
reasonably could form such a firm conviction or belief, then the evidence is factually
sufficient. C.H., 89 S.W.3d at 18–19.
Clear and convincing evidence of one pleaded conduct ground is sufficient to
support a termination decision if coupled with sufficient best-interest evidence. See
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re D.M., 58 S.W.3d 801, 813 (Tex.
App.—Fort Worth 2001, no pet.). But if one of the pleaded and found conduct
grounds is based on endangerment—Section 161.001(b)(1)(D) or (E)—then we must
fully address that ground, if presented on appeal, based on the future collateral
consequences of such a finding. See In re N.G., 577 S.W.3d 230, 235–37 (Tex. 2019);
see also Tex. Fam. Code Ann. § 161.001(b)(1)(M) (allowing termination of parent’s
parental rights if such rights to another child had been terminated under Section
161.001(b)(1)(D) or (E)).
B. The trial court’s endangerment findings
As noted, the parents argue that the evidence is legally and factually insufficient
to support the trial court’s findings that they violated the two endangerment grounds
in Section 161.001(b)(1)(D) and (E) of the Family Code. Because we conclude that
sufficient evidence supports termination under Subsection (E), we will not address
Subsection (D). See In re T.C., No. 02-19-00291-CV, 2019 WL 6606172, at *1 n.3 (Tex.
App.—Fort Worth Dec. 5, 2019, pet. denied) (mem. op.) (“We read N.G. to say that
an affirmance under either (D) or (E) suffices because under (M) an affirmance under
33
one makes the other moot.”); see also In re A.S., No. 02-19-00422-CV,
2020 WL 990028, at *5 (Tex. App.—Fort Worth Mar. 2, 2020, no pet.) (mem. op.).
Subsection (E) provides that parental rights may be terminated if the parent has
“engaged in conduct or knowingly placed the child with persons who engaged in
conduct [that] endangers the physical or emotional well-being of the child.” Tex. Fam.
Code Ann. § 161.001(b)(1)(E). To “endanger” means to expose a child to loss or
injury, or to jeopardize a child’s emotional or physical health. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see In re M.C., 917 S.W.2d 268,
269 (Tex. 1996); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no
pet.). Under Subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. J.T.G., 121 S.W.3d at 125. Subsection (E)
requires not just a single act or omission but rather a voluntary, deliberate, and
conscious course of conduct by the parent. Id.Mother asserts that given her limited cognitive functioning, she could not have
knowingly engaged in conduct that endangered her children’s physical and emotional
well-being. But the statute’s plain language does not require that a parent knowingly
engage in endangering conduct. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). To
support termination under Subsection (E), it is not necessary to establish that a parent
intended to endanger a child. See M.C., 917 S.W.2d at 270. Nor is it necessary to
establish that the conduct was directed at the child or that the child actually suffered
34
injury. Id. at 269; Boyd, 727 S.W.2d at 533. Rather, it is sufficient if the parent’s
conduct endangered the child’s well-being. See Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). Moreover, the endangering conduct does not have to occur in the child’s
presence. Id. at 617. And the conduct may occur before the child’s birth and either
before or after the child’s removal by the Department. Id.; see J.O.A., 283 S.W.3d at
345. A parent’s past endangering conduct may create an inference that the past
conduct may recur and further jeopardize the child’s present or future physical or
emotional well-being. See D.M., 58 S.W.3d at 812.
Here, Mother and Father argue that there is no evidence or insufficient
evidence to support the trial court’s findings that they engaged in conduct that
endangered their children’s physical or emotional well-being or knowingly placed their
children with persons who engaged in conduct that endangered their physical or
emotional well-being. We disagree.
Mother was the children’s primary caretaker. Brown reported that the floors of
the family’s home had mud and dirt on them, the house smelled of human urine, and
there were “tons of bugs and flies.” The home was so unsanitary that Brown feared
that the children would get sick from the home’s condition. Brown also reported that
the children were wearing tattered clothes and were extremely dirty. According to
Brown, the children had not bathed in a very long time and their body odor was so
strong that “[i]t was to the point where I was getting sick interviewing them[,] and I
35
was going to have to leave at one point because I couldn’t stay in there any longer
with the odor.” When confronted, Mother was unconcerned with the home’s
condition and her children’s cleanliness; Father claimed that “he had no idea what was
going on,” even though he lived there.
During the FBSS case, then six-year-old Penny was hospitalized. At that time,
she weighed 25 pounds and was extremely malnourished and dirty. Her lice-infested
hair was so matted that it had to be cut to treat the lice. When Green spoke with both
parents about Penny’s failure to thrive, both parents claimed that they were unaware
that Penny’s weight was an issue, even though then-six-year-old Penny was the size of
a toddler. Leal testified that she believed that Penny was in grave danger due to the
parents’ medical neglect.
Neglect can be just as dangerous to a child’s emotional and physical health as
intentional abuse. In re E.A.W.S., No. 2-06-00031-CV, 2006 WL 3525367, at *10 (Tex.
App.—Fort Worth Dec. 7, 2006, pet. denied) (mem. op.). By allowing the children to
live in such unsanitary conditions at home, Mother and Father endangered each
child’s health and physical well-being. See, e.g., In re M.C., 917 S.W.2d at 270; In re
W.R.E., 167 S.W.3d 636, 642 (Tex. App.—Dallas 2005, pet. denied). Moreover, the
evidence of Mother’s and Father’s continued neglect of Penny—which resulted in her
hospitalization during the FBSS case—supports a finding that the parents engaged in
a course of conduct endangering all the children’s physical or emotional well-being.
See In re C.E.K., 214 S.W.3d 492, 497 (Tex. App.—Dallas 2006, no pet.) (stating that if
36
a parent abuses or neglects the other parent or children, that conduct can be used to
support a finding of endangerment); see also E.A.W.S., 2006 WL 3525367, at *10 (“If a
parent abuses or neglects the other parent or children, that conduct can be used to
support a finding of endangerment even against a child who was not yet born at the
time of the conduct.”); In re D.T., 34 S.W.3d 625, 636–37 (Tex. App.—Fort Worth
2000, pet. denied) (op. on reh’g) (stating that evidence of conduct before child is born,
as well as evidence of how a parent has treated another child or spouse, is relevant
regarding whether a course of conduct under Subsection (E) has been established).
Viewing the evidence in the light most favorable to the trial court’s Subsection
(E) findings, we conclude that a reasonable factfinder could have formed a firm belief
or conviction that Mother and Father had engaged in conduct or had knowingly
placed Ross, Finn, Macy, and Penny with persons who had engaged in conduct that
endangered the children’s physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(E); J.P.B., 180 S.W.3d at 573. We thus hold that the evidence is legally
sufficient to support the trial court’s Subsection (E) findings. See Tex. Fam. Code
Ann. § 161.001(b)(1)(E); J.P.B., 180 S.W.3d at 573. And based on our review of the
entire record and giving due deference to the factfinder’s Subsection (E) findings, we
likewise conclude that the factfinder reasonably could have formed a firm conviction
or belief that Mother and Father had engaged in conduct or had knowingly placed
Ross, Finn, Macy, and Penny with persons who had engaged in conduct that
endangered the children’s physical or emotional well-being. See Tex. Fam. Code Ann.
37
§ 161.001(b)(1)(E); C.H., 89 S.W.3d at 18–19. We thus hold that the evidence is
factually sufficient to support the trial court’s Subsection (E) findings. See Tex. Fam.
Code Ann. § 161.001(b)(1)(E); C.H., 89 S.W.3d at 18–19.
Because the evidence is legally and factually sufficient to support termination
under Subsection (E), Mother’s and Father’s challenges to the sufficiency of the
evidence supporting the trial court’s findings under Subsection (D) (endangering
environment) are moot. See Tex. Fam. Code Ann. § 161.001(b)(1); A.S.,
2020 WL 990028, at *5; T.C., 2019 WL 6606172, at *1 n.3. Similarly, we need not
address the sufficiency of the evidence to support the other conduct ground—
Subsection (O) (failure to complete service plan)—found by the trial court, except as
to correct the judgment as to Father. See Tex. R. App. P. 47.1; see also Tex. Fam. Code
Ann. § 161.001(b)(1); A.V., 113 S.W.3d at 362; In re D.D.G., 423 S.W.3d 468,
475 (Tex. App.—Fort Worth 2014, no pet.). 9
C. The trial court’s best-interest findings
The parents also challenge the legal and factual evidentiary sufficiency to
support the trial court’s findings that termination of their parental rights was in the
best interest of Ross, Finn, Macy, and Penny.
9
But for correcting the judgment’s harmless clerical errors, we likewise need not
address Mother and Father third and seventh issues, which relate to the trial court’s
Subsection (O) findings. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (d); see also Tex.
R. App. P. 47.1.
38
Although we generally presume 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), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is
sufficient to support a best-interest finding, we review the entire record. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child’s best interest may be
the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H.,
89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the
evidence in light of nonexclusive factors that the factfinder may apply in determining
the child’s best interest:
• the child’s desires;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best
interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions indicating that the existing parent–child
relationship is not a proper one; and
• any excuse for the parent’s acts or omissions.
39
See Holley, 544 S.W.2d at 371–72; see also E.C.R., 402 S.W.3d at 249 (stating that in
reviewing a best-interest finding, “we consider, among other evidence, the Holley
factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These factors are not
exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d at
27. Furthermore, undisputed evidence of just one factor may suffice to support a
finding that termination is in the child’s best interest. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a finding. Id.
On appeal, Mother and Father recite the law applicable to the best-interest
analysis but do not analyze it under this case’s facts. We will nonetheless undertake
the analysis ourselves.
As to the children’s desires, because Ross had limited verbal abilities and Penny is
nonverbal, they were most likely incapable of expressing their desires; Finn and Macy
might have been capable of expressing their desires, but the Department presented no
such evidence. There was evidence, however, that the children loved and were bonded
with Father. This factor thus weighs slightly against terminating Father’s parental
rights to the children. See In re M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010,
no pet.). As to Mother, this factor weighs neither in favor of nor against termination
of Mother’s parental rights to the children. See E.N.C., 384 S.W.3d at 808.
Regarding the physical and emotional needs of the children now and in the future and the
physical and emotional danger to the children now and in the future, the record reflects that each
child—especially Penny—has specialized needs. As outlined in detail above, each of
40
the children is medicated and requires various forms of therapy. Penny has highly
specialized medical needs, requires special medical equipment, is under the care of
several different doctors, and is fed through a G-tube. The parents never proved that
they could meet Penny’s needs, especially regarding how to use and care for Penny’s
G-button. O’Brien believed that the children were at substantial risk if Mother’s and
Father’s parental rights were not terminated because the parents could not meet all
the children’s medical and developmental needs. Additionally, Mother’s and Father’s
attitudes toward Myra’s and Anne’s behavior raised concerns that the children—
especially Macy—could become sex-trafficking victims in the future.
Moreover, a psychologist diagnosed both parents with “borderline intellectual
functioning” and concluded that Mother had “very limited cognitive skills and is not
likely to appropriately make decisions in the best interest of herself and her children”
and that “[i]t is likely that [she] will need supervision and support with her children
and should not be in a decision-making and primary caretaking capacity.” See, e.g., In re
D.A.T., No. 02-10-00335-CV, 2012 WL 1947338, at *11 (Tex. App.—Fort Worth
May 31, 2012, pet. denied) (mem. op. on reh’g) (considering evidence that parent was
borderline intellectual functioning and needed assistance with making legal, medical,
and financial decisions in best-interest analysis). Regarding Father, the psychologist
concluded that he would “not be well-suited for a daily caregiving role.” See id.Neither Leal nor O’Brien believed that the parents could or wanted to take care
of their children’s needs. According to Leal, “it’s not just about their disabilities
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because I prompt them and they understand what I’m telling them. It’s more about
them not making significant life changes to be able to take care of their four
children.” In fact, the Department had been involved with the family off and on
regarding the same concerns (the children’s weight and the home’s condition) for
several years. Each time, the children and the home would improve when the
Department was involved with the family, but the parents would later regress.
In short, the evidence casts doubt on the parents’ ability to (1) understand their
children’s needs and provide for their physical and emotional needs now and in the
future and (2) understand and recognize the physical and emotional danger to the
children now and in the future. We thus conclude that the trial court was entitled to
find that these factors weighed in favor of terminating Mother’s and Father’s parental
rights.
As to the parents’ parenting abilities, the evidence showed that Mother and Father
love their children. Although Leal worked one-on-one with the parents to inform and
educate them on each of their children’s needs, the parents failed to demonstrate to
Leal that they could meet those needs and parent their children. The parents attended
the scheduled visits with the children but struggled to interact with and supervise
them. Leal had to prompt the parents to engage and interact with the children. During
these visits, Mother and Father never proved that they could meet Penny’s needs
(especially how to care for and use Penny’s G-button) and thus never progressed to
unsupervised visitation. According to Leal, the parents “failed to demonstrate
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significant life changes . . . as far as parenting goes.” Mother, the main caregiver, failed
to demonstrate that she knew what is required on a day-to-day basis to care for the
children or had any interest in learning what is required. And Leal and the
psychologist did not think that Father could take over the caretaking role. Father’s
trial testimony confirmed this fear as he was unable to testify about each child’s
particular needs. Plus, the parents’ attitudes toward Myra’s and Anne’s behavior raised
concerns about their abilities to effectively parent the younger children. We conclude
that the trial court was entitled to find that this factor weighed in favor of terminating
Mother’s and Father’s parental rights.
Regarding the programs available to assist the parents in promoting the children’s best
interests, the record reflects that the parents satisfied most of their service plan’s
requirements. They were unable to complete the parenting class and an online class
regarding sex trafficking, but the Department admitted that those failures were not
the parents’ fault. In fact, the trial judge stated on the record that he was “concerned
in this case that the Department didn’t do all [it] could do to take care of the services
that were ordered.” We conclude that this factor weighs against terminating Mother’s
and Father’s parental rights.
As to the parents’ and the Department’s plans for the children, Father testified that he
and Mother had done everything that the Department had asked them to do and that
he thinks they are much more capable of taking care of the children than they were
before the children’s removal. He further claimed that he and Mother were willing to
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do whatever they needed to do to take care of the children, including taking them to
medical and therapy appointments and making sure that they are eating and are taken
care of. But again, Father was unable to describe each child’s particular needs, and the
Department believed that terminating Mother’s and Father’s parental rights was in the
children’s best interest. All the children are doing well in foster care and are receiving
the medication and treatment that they need. Macy’s foster placement wants to adopt
her, and Foster Mother has a strong bond with Penny, loves her, and wants to
continue to foster Penny. Ross and Finn are doing well in their current placements,
and the Department’s plan is to move them into an adoption-motivated home
together. We conclude that the trial court was entitled to find that this factor weighed
in favor of terminating Mother’s and Father’s parental rights.
Regarding the stability of the parent’s home, the Department admitted that the family
had a stable home (they had lived there more than ten years). Father testified that he
owns the home and has maintained the same job for 22 years. The home was safe and
had water and electricity, there was food in the home, and the home’s condition had
improved, even though Leal said it still had a “foul odor.” We conclude that this
factor weighs against terminating Mother’s and Father’s parental rights.
As to the parents’ acts or omissions indicating that the existing parent–child relationship is
not a proper one and any excuse for the parents’ acts or omissions, the record reflects that the
children were removed because of the parents’ neglect and that the parents had been
neglecting these children for most, if not all, of their lives. Mother did not testify at
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trial to offer any excuse for her behavior, but the Department offered evidence that
she was unconcerned with her children’s conditions and was unwilling to learn what
she needed to do to care for them. When Father was asked whether he understood
that the Department had been involved in the family’s life for a decade because it
thought that he and Mother were not able to care for their children, Father said that
they could take care of them. Father said that they had “never caused any damage to
anyone and even less to our children.” But the evidence in this case contradicts
Father’s testimony. We conclude that the trial court was entitled to find that this
factor weighed in favor of terminating Mother’s and Father’s parental rights.
We recognize that not all the Holley factors weighed in favor of terminating
Mother’s and Father’s parental rights to Ross, Finn, Macy, and Penny. Even so, we
conclude that, viewing the evidence in the light most favorable to the trial court’s
best-interest findings, a reasonable factfinder could have formed a firm belief or
conviction that termination of Mother’s and Father’s parental rights was in the
children’s best-interest. See Tex. Fam. Code Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at
573. We thus hold that the evidence is legally sufficient to support the trial court’s
best-interest findings. See Tex. Fam. Code Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at
573. And based on our review of the entire record and giving due deference to the
factfinder’s best-interest findings, we conclude that the factfinder reasonably could
have formed a firm conviction or belief that termination of Mother’s and Father’s
parental rights was in the children’s best-interest. See Tex. Fam. Code Ann.
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§ 161.001(b)(2); C.H., 89 S.W.3d at 18–19. We thus hold that the evidence is factually
sufficient to support the trial court’s best-interest findings. See Tex. Fam. Code Ann.
§ 161.001(b)(2); C.H., 89 S.W.3d at 18–19.
D. Conclusion
Having found that the evidence is legally and factually sufficient to support the
trial court’s Subsection (E) and best-interest findings as to both parents, we overrule
their first, second, and sixth issues.
VI. Conclusion
We modify Subparagraph 7.2.3 of the trial court’s judgment (1) to delete
“mother” and replace it with “father” and (2) to delete “161.00(b)(1)(O)” and replace
it with “161.001(b)(1)(O).” Having overruled all the issues necessary for our
disposition of this appeal, we affirm as modified the trial court’s judgment terminating
Mother’s and Father’s parental rights to Ross, Finn, Macy, and Penny. See Tex. R.
App. P. 43.2(b).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: May 20, 2021
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