in the Interest of T.S. and S.A.S.

Affirmed and Memorandum Opinion filed June 15, 2006

Affirmed and Memorandum Opinion filed June 15, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00348-CV

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IN THE INTEREST OF T.S. AND S.A.S., CHILDREN

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 28992

M E M O R A N D U M   O P I N I O N

Ashley Wilson=s parental rights to her two children, T.S. and S.A.S, were terminated after a jury trial.  She appeals, arguing the trial court erred by denying her request for a directed verdict, and refusing to submit a jury question on joint managing conservatorship. She also contends the evidence is factually and legally insufficient.  We affirm.

Factual Background

The State took custody of Wilson=s children after receiving a report Wilson was in jail and had left her three-year-old son, T.S., with friends who could no longer care for him.  When a caseworker interviewed Wilson in jail, she discovered Wilson also had a two-year-old daughter, S.A.S., who had been living with an Aaunt@ for nineteen months.

Facts Concerning T.S.

In late April 2004, Wilson, who admitted to daily cocaine use until May of 2004, discovered she had a warrant for her arrest.^[1]  Because Wilson was allegedly Avery concerned@ about what would happen if T.S. was with her when she was arrested, she left him with her friends, David Perez and Colleen Parker, whom she had known for about two years.  Wilson left T.S. with Aa couple of outfits,@ and Perez and Parker said they would provide T.S.=s meals Afor the time being.@  Wilson arranged for her mother to travel from Oklahoma to pick up T.S. because she intended his stay with Perez and Parker to be temporary.  The police went to Perez and Parker=s home searching for Wilson sometime after she dropped off T.S.  Because Perez and Parker promised the police they would call if Wilson came to visit T.S., she did not visit her son.  Instead, she called to check on him and had another friend give clothes, food, and money to Perez for T.S.=s care. Wilson claims she did not turn herself in because she was waiting for her mother to pick up T.S.  Wilson=s mother never arrived.

Wilson was arrested on May 20, 2004.  When Perez and Parker heard Wilson was in jail, they called Brazoria County Children=s Protective Services (CPS) and asked CPS to take T.S.; he had lived with them for approximately three weeks.  A CPS caseworker visited Wilson in jail. Visibly upset, Wilson told the caseworker T.S. had a little sister who was living with an Aaunt,@ but the aunt did not want T.S.  She gave the caseworker Perez= address, and told her about other possible placements for T.S.^[2]

CPS picked up T.S. from Perez= home on May 21, 2004.  The caseworker described the home as an inappropriate placement with debris and mud in the yard and men drinking in the driveway.  She said T.S. was barefoot and covered in dirt from playing outside. His underwear was grayish in color, there were small cuts on his feet, arms and face, and he had large ringworms on his legs that had scabbed over.  The caseworker was unable to interview T.S. at the time because he was busy playing in the mud.  She stated that, once T.S. got into her car, he said, ADamn, that was really hard work.@  CPS placed T.S. in foster care.

Facts Concerning S.A.S.

In October of 2002, one week after S.A.S.=s first birthday, Wilson phoned Denise Sambrano, a longtime friend of Wilson=s mother.  Wilson told Mrs. Sambrano she could no longer care for S.A.S., and asked Mrs. Sambrano to take the girl.  Wilson did not mention T.S. to Mrs. Sambrano at this time.  Although Mrs. Sambrano had just remarried, she and her husband agreed to take S.A.S.

When Mrs. Sambrano arrived to retrieve S.A.S., she noticed four or five men sitting on the couch inside the apartment while she stood outside.  She also smelled Aburnt tar@ coming from inside, which she believed was the odor of crack cocaine.  Wilson carried S.A.S. to Mrs. Sambrano and offered to retrieve S.A.S.=s belongings.  Mrs. Sambrano declined and said she would care for the baby and Wilson needed to get her life together.  Mrs. Sambrano testified she wanted to get S.A.S. away from that situation.  Almost two months later, Wilson and Mrs. Sambrano each signed a handwritten, notarized document that read:

I, Ashley Wilson leave my daughter [S.A.S.] to the care & custody of Denise Z. Sambrano.

Date 12-12-02

S.A.S. lived with Mrs. Sambrano and her husband for nineteen months.  Wilson visited between Aa few@ and Aten@ times.  During this time, Mrs. Sambrano testified she took care of T.S. twice for a couple of days. Once, Wilson=s mother dropped him off without shoes or socks and in clothes that looked as though he had Aslept in them for two days.@

CPS removed S.A.S. from the Sambrano home just days after T.S.=s removal from the Perez and Parker home.  The only reason CPS gave for taking S.A.S. was that Mrs. Sambrano did not have legal custody and could not authorize the child=s medical treatment.^[3]  One caseworker testified the clothes S.A.S. brought with her were too big; Mrs. Sambrano said she allowed S.A.S. to take whatever she wanted when she left. S.A.S. also brought a sippy cup with soda in it and Athere was molding around the cup.@ CPS placed S.A.S. with her brother in foster care.^[4]

Wilson testified at trial that she could not decide Aright now@ whether she should give Mrs. Sambrano full custody of S.A.S.  Wilson admitted that, two months before trial, she told Mrs. Sambrano to take S.A.S. because Ayou=re her mommy,@ but then also told Mrs. Sambrano AI need [T.S.]@ and T.S. is Amy heart.@   Although Wilson denied her comments to Mrs. Sambrano constituted a custody agreement, she testified it was her intent, when she made these comments, to give Mrs. Sambrano full custody of S.A.S.

Procedural Background

The Texas Department of Family Protective Services (TDFPS)^[5] sought to terminate Wilson=s parental rights on seven statutory grounds, including child abandonment and endangerment.  Tex. Fam. Code Ann. ' 161.001(A)B(E), (K), (O) (Vernon 2002).  At the close of trial, only four grounds were submitted to the jury, alleging Wilson:

(A) voluntarily left her children alone or in the possession of another not the parent and expressed an intent not to return;

(C) voluntarily left her children alone or in the possession of another without providing adequate support of the children and remained away for a period of at least six months;

(D) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;

(E) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.

Id. ' 161.001(A), (C)B(E).  The jury found, by clear and convincing evidence, that Wilson endangered both children under ground (E), and that termination was in the children=s best interests.  The jury also found Wilson abandoned S.A.S. under ground (A), and endangered T.S. under ground (D).  The trial court terminated Wilson=s parental rights to both children and denied her subsequent motion for new trial.  Wilson appeals, challenging (1) the trial court=s denial of her motion for directed verdict, (2) the trial court=s refusal to submit a jury question on joint managing conservatorship, and (3) the factual and legal sufficiency of the evidence supporting termination ground (E), as well as of evidence that termination is in her children=s best interests.

Standard of Review and Applicable Law

The natural right existing between a parent and child involves fundamental Constitutional rights.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  This natural right is Aessential,@ a Abasic civil right of man,@ and is Afar more precious than property rights.@  Id. (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).  A termination decree is final and irrevocable.  Id.  It divests the parent-child relationship for all time, as well as all legal rights, privileges, duties, and powers between the parent and child, except the child's right to inherit.  Id. There must, therefore, be clear and convincing evidence to support termination before a court may involuntarily sever this relationship.  Santosky v. Kramer, 455 U.S. 745, 747 (1982);  Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984). Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.  Holick, 685 S.W.2d at 20B21.

Directed Verdict

At the close of TDFPS= case, Wilson=s attorney moved for a directed verdict,  claiming Athe Petitioner has not proved by clear and convincing evidence that [Wilson] knowingly placed these children in a place or with a person that was a danger to them.@^[6]  The attorney ad litem agreed with Wilson=s counsel and argued TDFPS did not prove Wilson voluntarily placed the children in a Adangerous position.@ The attorney ad litem asked for a directed verdict A[a]t least as to [S.A.S.].@ TDFPS replied that this was one ground of many upon which they sought termination, there was evidence T.S. was knowingly placed in endangering surroundings, and that S.A.S. was left with caregivers who had no authorization to provide for her medical care.  The trial judge denied Wilson=s motion.

In her first issue, appellant contends the trial court erred in denying her request for a directed verdict.  A trial court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to the plaintiff=s right of recovery.  Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). We review a trial court=s action on a motion for directed verdict just as we do a claim of legally insufficient evidence.  City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).  We Alook at all evidence in a light most favorable to the finding and determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding is true.@  In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). If we find no fact finder could have done so, we must conclude the evidence is legally insufficient.  Id.

After reviewing the record, we find there is legally sufficient evidence Wilson knowingly placed or knowingly allowed her children to remain in conditions or surroundings endangering their physical or emotional well-being.  Wilson admitted to using cocaine daily prior to her arrest in May of 2004, and admitted that she has not had one day of sobriety outside of prison.  Wilson testified she was the children=s main caregiver when they were born, and she cared for them during the day and evening.  Mrs. Sambrano smelled what she believed was crack cocaine when she picked up S.A.S. from Wilson=s apartment.  Wilson left T.S. with Perez and Parker in dirty and possibly dangerous conditions. When CPS picked up T.S., he was filthy, barefoot, his underwear was Agrayish,@ he had small cuts on his feet and face (that did not require band-aids), and large ringworms on his legs.  Another caseworker testified T.S. played with roaches that crawled out of a bag of his stuffed animals taken to his foster home.  We find legally sufficient evidence supports termination ground (D), and we overrule Wilson=s first issue.

Jury Question on Joint Managing Conservatorship

In her second issue, Wilson argues the trial court erred by refusing to submit a jury question on joint managing conservatorship.^[7]  At the charge conference, Wilson sought to submit a jury question asking who should be appointed joint managing conservators of the children:  TDFPS and Wilson, TDFPS and the Sambranos, or the Sambranos and Wilson.  No pleading raised this issue.  However, the trial court stated:

[T]he issue has essentially been tried by consent with regard to other parties, the Sambranos. But I don=t think I would give the jury a charge on the Sambranos.  Not under the testimony that we have in this case.  First place, it=s obvious that [Wilson]=s in jail, but then, there would also have to be an issue on who would establish the primary residence.  And it would not be her.

The attorney ad litem suggested the jury or the parties could determine primary residence, but the trial court refused to submit any issue on joint managing conservatorship.

Joint Managing Conservatorship

Persons appointed as joint managing conservators share parental rights and duties.  London v. London, 94 S.W.3d 139, 149 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  They are usually, though not necessarily, the parents, and the exclusive right to make particular decisions may be awarded to only one party in this kind of relationship.  Tex. Fam. Code Ann. ' 101.016 (Vernon 2002).  Joint managing conservatorship is generally presumed to be in the best interest of the child when determining conservatorship incident to a divorce.  Bates v. Tesar, 81 S.W.3d 411, 421B22 (Tex. App.CEl Paso 2002, no pet.).  This is consistent with Texas public policy seeking to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code Ann. ' 153.001(a) (Vernon 2002). 

The Texas Family Code chapter providing for involuntary termination of the parent-child relationship only mentions appointment of a managing conservator following termination.  It does not mention joint or sole managing conservatorship status.  Tex. Fam. Code Ann. '' 161.001B161.211 (Vernon 2002 & Supp. 2004B05). We, therefore, must turn to Texas Family Code chapter 153 to gain insight on when joint managing conservatorship may be granted. 

Joint managing conservatorship does not generally apply to parental termination cases. First, a parent against whom termination is sought can only be appointed a joint managing conservator if the petitioner fails to prove its caseCthat is, if that parent=s rights cannot be severed.  See id. ' 161.205 (Vernon 2002) (requiring trial court to either deny the petition or Arender any order in the best interest of the child@ if the trier of fact does not terminate the parent-child relationship).  Second, in an original suit for conservatorship, possession, and access, a court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or of physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. Id. ' 153.004(b) (Vernon Supp. 2005); see also In re N.J.G., 980 S.W.2d 764, 766 n.1 (Tex. App.CSan Antonio 1998, no pet.) (noting Texas Family Code section 161.205 is usually interpreted with regard to the section 153.131(a) presumption that a parent shall be appointed sole managing conservator or both parents as joint managing conservators unless the child=s physical health or emotional development would be significantly impaired; considering also section 153.004 precluding joint managing conservator status when there is credible evidence of a history or pattern of child abuse or neglect). In fact, a parent=s unsupervised visitation with a child is presumed to be against the child=s best interest if there is credible evidence that parent has a history or pattern of child abuse or neglect.  Tex. Fam. Code Ann. ' 153.004(e).

Standard of Review for Jury Charge Error

We review the submission of jury questions for an abuse of discretion.  Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.CHouston [14th Dist.] 1994, writ denied).  A trial court must submit all questions, instructions and definitions to the jury raised by the written pleadings and any evidence.  Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).  A trial court may not submit a jury question that is neither supported by the pleadings nor tried by consent.  Recognition Commc=ns, Inc. v. Am. Auto. Ass=n, Inc., 154 S.W.3d 878, 885B86 (Tex. App.CDallas 2005, pet. denied); Tex. Indus., Inc. v. Vaughan, 919 S.W.2d 798, 803 (Tex. App.CHouston [14th Dist.] 1996, writ denied).  To do so is an abuse of discretion.  Stephanz v. Laird, 846 S.W.2d 895, 902 (Tex. App.CHouston [1st Dist.] 1993, writ denied).

No pleading raised the issue of joint managing conservatorship.  When issues are not raised by the pleadings but are tried by either express or implied consent of the parties, Athey shall be treated in all respects as if they had been raised in the pleadings.@  Tex. R. Civ. P. 67.  To determine whether an issue was tried by consent, A>we must examine the record not for evidence of the issue, but rather for evidence of trial of the issue.=@  Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 281 (Tex. App.CHouston [14th Dist.]  1999, pet. denied) (quoting Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex. App.CWaco 1997, no writ)).  (emphasis in original).  Trial by consent A>is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unpleaded issue. It is not intended to establish a general rule of practice and should be applied with care, and in no event in a doubtful situation.=@  Stephanz, 846 S.W.2d at 901(quoting Jay Fikes & Assoc. v. Walton, 578 S.W.2d 885, 889 (Tex. Civ. App.CAmarillo 1979, writ ref=d n.r.e.)).  Trial by consent is inapplicable when evidence relevant to an unpleaded matter is also relevant to a pleaded issue because admitting the evidence is not calculated to elicit an objection and, therefore, does not demonstrate a Aclear intent@ by all parties to try the unpleaded issue.  See In re J.M., 156 S.W.3d 696, 705 (Tex. App.CDallas 2005, no pet.) (stating evidence of unpleaded issue applied also to whether termination was in children=s best interests).

Analysis

We cannot say the parties impliedly consented to trying whether joint managing conservatorship should be granted between the Sambranos and a party to this suit. All evidence concerning the propriety of the Sambranos= home went equally to the issue of termination because TDFPS alleged, inter alia, that Wilson knowingly placed or allowed her children to remain in conditions or surroundings endangering to their physical or emotional well-being.  Evidence regarding the Sambranos= continued desire to adopt the children and their progress with TDFPS to gain custodyCincluding completion of a home study and psychological evaluationCwas relevant to whether they should be named sole managing conservators of the children.  TDFPS, in its petition seeking termination in the event the children could not be safely returned to a parent, requested the appointment of itself, a relative, or other suitable person as the children=s sole managing conservator.  The trial court submitted a jury question on sole managing conservatorship.

There is also no evidence that the Sambranos, Wilson, or TDFPS would consider or be able to share parental rights and duties as required between joint managing conservators.  Instead, evidence at trial showed repeated miscommunications between TDFPS and the Sambranos, and the court-appointed child advocate (ACASA volunteer@) testified she believed TDFPS was being Aobstructive@ in the Sambranos= attempts to visit the children.  Mrs. Sambrano, when asked by TDFPS= attorney whether she was frustrated with TDFPS, replied, ABy you.  Hit to the head.@  Mrs. Sambrano testified she would like to adopt the children, and she understood to do so meant their parents= rights must be terminated.  She also testified she understood, if and when she adopted the children, Wilson would be allowed no contact with her children.^[8]

Neither party pled for joint managing conservatorship, and after fully examining the record, we find this issue was not tried by consent.  We find the trial judge did not abuse her discretion in refusing to submit this jury question, and we overrule Wilson=s second issue.

Sufficiency of the Evidence

Wilson, in her final issue, challenges the legal and factual sufficiency of the evidence supporting the jury=s finding Wilson engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers their physical or emotional well-being.^[9]  Tex. Fam. Code Ann. ' 161.001(E).  She also challenges the legal and factual sufficiency of the evidence showing termination is in her children=s best interests.

As discussed above, the jury found a total of three statutory grounds for termination: the endangerment ground (E) as to both children, (D) as to T.S., and abandonment ground (A) as to S.A.S. Assuming without deciding there is legally insufficient evidence of termination ground (E), Wilson cannot show reversible error by challenging only ground (E) when she has not raised evidentiary challenges to the other grounds for termination.  Tex. R. App. P. 44.1(a). Therefore, we do not address her evidentiary challenge to subsection (E).  We look only to the sufficiency of the evidence supporting the jury=s finding that termination is in the best interest of the children.

Standard of Review and Applicable Law

In a legal sufficiency review, we Alook at all evidence in a light most favorable to the finding and determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding is true.@  J.F.C., 96 S.W.3d at 266.  We assume disputed facts were resolved in favor of the verdict if it is reasonable to do so, and we disregard all evidence that could be reasonably disbelieved.  Id. This does not mean we disregard all evidence that does not support the findingCdoing so could skew our analysis.  Id. If we find no fact finder could have formed a firm belief or conviction that its finding is true, we must conclude the evidence is legally insufficient.  Id.

In a factual sufficiency review, we give due consideration to evidence the jury could reasonably have found to be clear and convincing, and we examine whether this evidence is such that a reasonable fact finder could form a firm belief or conviction the allegations are true.  Id. We consider whether the disputed evidence is such that the jury could reasonably resolve it in favor of its finding.  Id. If, in light of the entire record, the disputed evidence that cannot have reasonably been credited in favor of the finding is so significant that the fact finder could not have reasonably formed a firm belief or conviction in favor of termination, we must find the evidence is factually insufficient.  Id.

There is a strong presumption a child=s best interest is served by staying with the natural parent, and the burden is on TDFPS to rebut that presumption.  In re U.P., 105 S.W.3d 222, 230 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  For the trier of fact to determine whether this presumption is rebutted, it must consider many issues, such as:  (1) the child=s desires, (2) the present and future emotional and physical needs and dangers to the child, (3) parenting abilities involved, (4) programs available to help the parent, (5) TDFPS= plans for the child and the stability of the proposed placement, (6) any of the parent=s acts or omissions indicating the relationship is not a proper one, and (7) whether there is any excuse for those acts or omissions.  Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976). This list is not exhaustive, nor is evidence required on each listed factor.  U.P., 105 S.W.3d at 230.

The Children=s Desires

The children are too young to express their wishes on this issue.  There is no evidence about the children=s relationship with their mother.  The record shows S.A.S. lived with the Sambranos for nineteen months, during which time her mother visited between Aa few@ and Aten@ times.  Wilson admitted she told Mrs. Sambrano to keep S.A.S. because she is S.A.S.=s Amommy.@  The children=s second foster father testified the term Amother@ is general to T.S., and that T.S. called his foster mother Amother.@  The foster father also stated neither child is aware Wilson is their mother.  Because Wilson was in jail, she had not visited with her children for at least nine months prior to trial, although she did write three letters from jail asking about them.  This evidence weighs in favor of the jury=s best interests finding.

The Present and Future Emotional and Physical Needs and Dangers to the Children

The second foster father described T.S. as a normal four-year-old boy, and S.A.S. as a shy, three-year-old girl.  He also described both children as confused and angry.

Children need permanency and security.  U.P., 105 S.W.3d at 230.  At the time of trial, Wilson was in prison and unable to provide any home for her children.  Although a parent=s imprisonment, by itself, is not a ground for termination, a parent=s imprisonment or voluntary absence from her children=s lives can negatively impact their emotional well-being. See In re S.M.L., 171 S.W.3d 472, 478B79 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (stating incarcerated parents are absent from child=s daily life and child=s living environment and emotional well‑being can be negatively impacted when parent repeatedly commits criminal acts subjecting him to possibility of incarceration).  Knowing she would still be in prison at the end of trial, Wilson testified she wanted her children to stay with the Sambranos.  There is little evidence of any physical or emotional problems or delays with either child.  There is, however, evidence T.S. was left in a temporary living situation for almost a month that CPS described as Ainappropriate,@ was not bathed or properly clothed on more than one occasion, and had large ringworms on his legs.  S.A.S. seemed happy and well-adjusted while living with the Sambranos. There is evidence her later removal into foster care was difficult.  She also cried for hours after TDFPS= abrupt decision to return the children to foster care on the same day they were supposed to move to the Sambranos= home. T.S., who was described as Aman-like,@ was angry when this happened.  Permanency is crucial to these children=s lives, and Wilson has not shown she can provide such permanency.  This factor also weighs in favor of the jury=s finding.

Parenting Abilities Involved

At trial, Wilson admitted to daily drug use outside of prison.  There is evidence she often left her children with othersCher sister refused to be Astuck@ with the children Aagain@ when they were taken into CPS custody, S.A.S. had lived with the Sambranos for a year and a half, and T.S. stayed with Perez and Parker for at least twenty days.  Mrs. Sambrano testified she knew Wilson=s drug use to be extensive Aoff and on,@ and Athat type of environment@ is not suitable for any child.

Wilson=s criminal history includes several charges between November of 2002 and May of 2004, including criminal trespass, evading arrest, tampering with a government record (when she gave her sister=s name to the police instead of her own), fleeing a police officer, and possession of a controlled substance.  Wilson testified she has never worked and has relied on boyfriends for drug money in the past.  Two months before trial, Wilson told Mrs. Sambrano to take S.A.S. as her own child. At the same time, Wilson said she Aneeds@ T.S., and T.S. is her Aheart.@  There are two reports of physical neglect by Wilson against T.S., one in May of 2001 and one in April of 2003.  CPS was Aunable to determine@ any abuse when it investigated the May of 2001 report and, in April of 2003, CPS was unable to investigate a report of abuse phoned in by Mrs. Sambrano because Wilson had moved.

The most favorable evidence of Wilson=s parenting abilities is that she attempted to find other homes for her children.  We find this factor also weighs in favor of the jury=s best interests finding.

Programs Available to Help the Parent

CPS did not offer Wilson any services because she was incarcerated.  Wilson was scheduled for release from jail seven months after the trial, in September of 2005, and expected to live in a halfway house for three months before being free to live on her own.  In jail, Wilson participated in substance abuse and parenting classes and started working to obtain her GED.  She testified she loves her children, and she wrote letters from jail to ask how they were doing and to ask CPS for a copy of her family service plan. Although Wilson=s desire to effect a turnaround in her life is commendable, there is no evidence she has been able to free herself from her long-term drug dependency in order to provide a safe and stable home for her children.  See In re M.G.D., 108 S.W.3d 508, 513 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (stating significance of personal turnaround depends on what turnaround is from and jurors are not required to ignore long history of drug dependency).  There is also no evidence she completed any of the programs she said she participated in while in jail.  This factor weighs in favor of the jury=s finding.

Wilson=s Acts or Omissions Indicating the Relationship is Improper and any Excuse for those Acts or Omissions

Wilson has several arrests and has violated probation more than once.  Her continued drug use and criminal activity interfered with her ability to provide a stable and permanent home for her children. She left her children with others and used cocaine on a daily basis.  Excuses for this behavior are Wilson=s young age and her drug addiction; however, there is no evidence she has successfully completed a drug abuse program or made progress in any class she started while in jail.  There is no evidence showing she has now escaped the habits that caused her inability to care for her children.  Therefore, the children=s risk of exposure to this lifestyle, should they be returned to Wilson, still remains.

TDFPS= Plans for the Child and the Stability of the Proposed Placement

At the time of trial, TDFPS planned to complete a full home study on the Sambranos and to require Frank Sambrano to complete a psychological evaluation before allowing the children to live with the Sambranos.  Caseworkers and a CASA volunteer had only positive things to say about the Sambranos= home after visiting:  it is a clean, child-friendly home, and the children have exhibited Amany acts of spontaneous joy@ with the Sambranos.  This is the home S.A.S. knows, and it is where Wilson wanted her children placed following the termination trial.^[10]  The children were not placed with the Sambranos at the time of trial because TDFPS was investigating concerns raised before trial, including an allegation Frank Sambrano was physically abusive with his ex-wife and that Mrs. Sambrano had used drugs.  The CASA volunteer testified both allegations lacked merit.  An earlier report that Mrs. Sambrano abused S.A.S. was determined to be unfounded after a CPS investigation.^[11]

We find there is legally and factually sufficient evidence that termination of Wilson=s parental rights is in both children=s best interests.  We overrule Wilson=s final issue, and affirm the trial court=s judgment.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed June 15, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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^[1]  Wilson was wanted for violating the terms and conditions of her probation.  She was on probation for tampering with a government document and for possessing cocaine. The tampering charge arose when Wilson was arrested previously but signed her sister=s name in order to hide a warrant for another probation violation.

^[2]  T.S. could not be placed immediately with Wilson=s mother because CPS could not obtain sufficient information to perform a background check on a person living with her in Oklahoma. Wilson=s sister refused to be Astuck@ with the children again.

^[3]  S.A.S. was hospitalized one time shortly after Mrs. Sambrano took her in, and later required medical attention for various childhood illnesses.  In each instance, Mrs. Sambrano obtained authorization for S.A.S.=s medical care by contacting Wilson or another family member.  At the time the State removed S.A.S., Wilson=s whereabouts were known and the State could have obtained proper medical authorization for any person caring for the girl.

^[4]  CPS placed the children in a foster home, but moved them into a second home soon thereafter.  The first family complained S.A.S. was exhibiting sexual behavior which their small children were beginning to imitate:  they were found mimicking sexual positions completely nude; S.A.S. would lay on her back with her legs apart and say AI=m ready@; and at church S.A.S. was seen taking down her underwear and masturbating.  One caseworker testified S.A.S. was taken for a sex abuse exam, but the exam was inconclusive.  The caseworker also stated S.A.S.=s genital area was infested with pinworms, and her behavior was spreading the worms to others. The caseworker=s notes also mentioned S.A.S. had a severe urinary tract infection.

^[5]  CPS is a division of TDFPS.  See Tex. Fam. Code Ann. ' 264.404 (Vernon Supp. 2004B05).

^[6]  Although Wilson=s attorney moved for a directed verdict, she challenged only endangerment ground (D), and therefore moved only for a partial directed verdict.  Wilson=s appellate brief argues there was no clear and convincing evidence at trial she knowingly placed or allowed her children to remain in conditions endangering their physical or emotional well-being.  This corresponds to subsection (D) of the termination statute.  Tex. Fam. Code Ann. ' 161.001(1)(D).

^[7]  TDFPS argues Wilson failed to preserve error.  The exhibits volume of the reporter=s record contains the written question Wilson=s attorney submitted to the trial judge.  The judge marked the question Arefused@ and signed her name.  Wilson has preserved this issue for our review.  Tex. R. Civ. P. 278.

^[8]  There was some confusion on this issue, as evidenced by a follow-up question asking Mrs. Sambrano whether Wilson would be allowed at the house if she adopted the children.  She answered:  AWould I be allowed by B who would allow me to.@  TDFPS did not pursue this line of questioning.

^[9]  Appellant=s brief challenges only the evidence supporting the subsection (E) termination ground by quoting its statutory language.  However, in the argument on this issue, there is one cursory statement that subsection (D) requires an examination of the child=s environment to determine whether it is a source of endangerment.  The argument, then, does not mention the condition of Perez and Parker=s home or the large ringworms CPS discovered on T.S.=s legs.  Because the jury terminated Wilson=s rights under ground (D) to T.S. only, any evidentiary challenge to ground (D) must concern T.S.  We find Wilson has inadequately briefed any evidentiary challenge to subsection (D). Tex. R. App. P. 38.1(h); Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 409 (Tex. App.CHouston [14th Dist.] 2001, judgm=t vacated w.r.m.).

^[10]  TDFPS did, in fact, place the children with the Sambranos after the termination trial.

^[11]  In November of 2003, CPS investigated a report that Mrs. Sambrano abused S.A.S., and concluded there were no signs of abuse.  In the investigation, a caseworker spoke with Denise and Frank Sambrano, physically examined S.A.S. for suspicious marks or bruises, observed S.A.S. in the home (S.A.S. was described as having Ano fear of either [Mr. or Mrs. Sambrano] and, if anything, [as being] a bit spoiled@), researched the Sambranos= and Wilson=s criminal backgrounds, and interviewed Wilson=s sister (who reported S.A.S. was Abetter off@ with the Sambranos) and Mrs. Sambrano=s adult daughter (who said she had no concerns about the way her mother cared for S.A.S.).  The report concluded the Sambranos Aare responsible caregivers.@