in the Interest of L.D.K., M.L.P., S.D.P. and D.E.P.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-288-CV
IN THE INTEREST OF L.D.K., M.L.P., S.D.P., AND D.E.P.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
This appeal follows an order terminating the parental rights of Appellants
Michael P. and Stacy K. Michael argues that the trial court erred by denying his
motion for extension, that the evidence is legally and factually insufficient to
support the trial court’s finding that he engaged in culpable conduct under
section 161.001(1) of the Texas Family Code, and that the evidence is factually
1
… See T EX. R. A PP. P. 47.4.
insufficient to support the trial court’s finding that the termination of his
parental rights is in the best interest of L.D.K., M.L.P., S.D.P., and D.E.P.
(collectively, “children”). Stacy argues that the evidence is legally and factually
insufficient to support the trial court’s finding that the termination of her
parental rights is in the children’s best interest. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Stacy and Michael are the parents of the children at issue in this case and
have lived together since 1995. At the time of trial, L.D.K. was ten years’ old,
M.L.P. was nine years’ old, S.D.P. was six years’ old, and D.E.P. was one year
old.
In 2001, when the family lived near Harris County, CPS removed the
children, except for D.E.P.,2 when S.D.P. tested positive for cocaine after birth.
Stacy admitted to using cocaine a “couple of weeks each month” during her
pregnancy with S.D.P. Stacy and Michael both completed substance abuse
programs for drugs and alcohol, respectively, and in July 2002, CPS returned
the children to live with Stacy and Michael. Stacy relapsed two years later, and
Michael began drinking again within three years of his rehabilitation. Then,
sometime in 2005 after Stacy relapsed, Michael also began using cocaine.
2
… D.E.P. had not been born at this time.
2
In September 2005, when Hurricane Rita hit Harris County, the family lost
its trailer home and eventually moved to Tarrant County. Neither Stacy nor
Michael has held a stable job since moving to Tarrant County. Stacy stated
that she had not worked anywhere since moving to Tarrant County. Michael
worked a few odd jobs in the time between when the family moved and when
the children were removed, but his main income has been a Supplemental
Security Income (SSI) disability check that he receives for injuries he suffered
while performing a plumbing job. Stacy admitted that the couple used a portion
of this monthly SSI check to pay for drugs.
While in Tarrant County, the family has lived in four hotels, which FEMA
temporarily paid for, and at times, the family lived in shelters. Stacy stated that
the family would stay in shelters for free for seven days and then leave once
the shelter required payment. Stacy also testified that she had to use L.D.K.’s,
M.L.P.’s, and S.D.P.’s SSI checks that they received for various medical issues
to pay for the hotel rooms. Because she was spending the money on hotel
rooms, Stacy was unable at times to buy the appropriate medicine for the
children.
On October 10, 2006, Stacy and D.E.P. checked into the Arlington Life
Shelter to allow Michael time and space to move the family into an apartment.
Stacy left the other three children with Michael because she was unable to
3
control all the children at the shelter. The shelter required Stacy to submit to
a criminal background check and a drug screening. Stacy tested positive for
cocaine and admitted that she and Michael had smoked crack cocaine together
and that they had most recently used two days prior to coming to the shelter.
CPS investigators came and removed D.E.P. from the shelter, and additional
investigators went to the family’s hotel room and removed the other three
children.
Even though the children were removed in October 2006, the parents
failed to make visits until January 2007. Stacy claimed that she and Michael
could not make the visits in Fort Worth because they lived in a hotel in
Arlington and they had no transportation. Michael stated that he and Stacy
could not move to a hotel in Fort Worth because it would cost too much money
and because they did not have transportation to get there.
CPS created a service plan for Stacy and Michael after the removal, but
Shawna Wells, a CPS caseworker, was unable to deliver it to the parents at
that time because she could not locate them. Wells personally delivered the
service plan to the parents in January 2007. Neither parent had completed
their services as of the time of the trial in August 2007. Both parents
continued to use drugs after the removal of the children, but they testified that
they had last used cocaine in April 2007. The family’s living situation had not
4
improved since the removal. Stacy stated that she had recently stayed at a free
shelter in Parker County, but the shelter asked her to leave for failure to
complete her chores on time. Stacy and Michael then began living out of their
car. And in fact, the couple stayed in their car the night before trial, but on the
first day of trial, the car was repossessed from the courthouse parking lot.
After hearing evidence on August 14 and 16, 2007, the trial court
granted the petition of the Department of Family and Protective Services (DFPS)
to terminate Stacy’s and Michael’s parental rights. The trial court found by
clear and convincing evidence that Stacy and Michael knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endangered the physical or emotional well-being of the children, and that Stacy
and Michael engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangered the physical or emotional well-being
of the children. See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E) (Vernon Supp.
2007). The trial court also found by clear and convincing evidence that the
termination of Stacy’s and Michael’s parental rights was in the children’s best
interest. See id. § 161.001(2).
III. M OTION FOR E XTENSION
Before DFPS called its first witness, Michael’s attorney made an oral
motion for an extension of time so that both parents could comply with the
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service plan. The attorney argued in support of the motion that the parents had
obtained transportation so that they could start completing their services, that
they had been clean from drug use since April 2007, and that they were ready
to move into an apartment. He also mentioned that the children wanted to go
home with their parents. Michael’s main argument before the trial court was
that the service plan given to the parents was deficient. He stated that while
the top of service plan properly addressed the parents as “Stacy [K.]” and
“Michael [P.],” the body of the service plan referred to Michael P. as “Mr. [K.].”
Thus, he argued that the service plan was not specific enough to apprise
Michael of the services that he was required to complete. See T EX. F AM. C ODE
A NN. § 263.102 (Vernon 2002). The trial court denied the motion, and Michael
now argues in his first issue that the trial court erred by denying the request.
See id. § 263.401(b) (Vernon Supp. 2007).
We review a trial court’s determination on a motion for extension for an
abuse of discretion. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth
2008, pet. denied) (en banc). Section 263.401 of the Texas Family Code
provides that, unless the court has commenced the trial on the merits or
granted an extension, it must dismiss DFPS’s suit for termination on the first
Monday after the first anniversary of the date the court appointed DFPS as
temporary managing conservator in a suit affecting the parent-child relationship.
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T EX. F AM. C ODE A NN. § 263.401(a). The statute also provides that the trial
court may extend this deadline for up to 180 days if the court finds that
extraordinary circumstances necessitate the child remaining in the temporary
managing conservatorship of the DFPS and that continuing the appointment of
DFPS as temporary managing conservator is in the best interest of the child.
Id. § 263.401(b).
The attorney ad litem for the children did not oppose the motion. She
stated, however, that her stance had nothing to do with whether the parents
knew what services they were to complete—in fact, she stated that in her
conversations with the parents they were both “very aware” of what services
they each needed to complete—but was instead based on her role as a child-
directed attorney and the fact that the three older children would agree to an
extension because they would rather be with their parents. She went on
further to say that “I don’t have any argument that [Michael] had no idea what
he was supposed to do. [Michael] was clear what services he was supposed to
do. He and I have discussed those services.” DFPS argued that a CPS
caseworker had personally delivered to the parents letters regarding the services
and that the parents had had plenty of opportunities to work on the services
prior to trial.
7
Despite the manner in which the service plan was drafted, the statements
by DFPS’s attorney regarding the letters and by the attorney ad litem regarding
Michael’s knowledge of the services suggest that Michael did in fact have
knowledge of the services that he needed to complete. There was no
testimony in support of this motion from either parent regarding their
knowledge of the services or what services they had completed. Based on the
arguments and statements presented to the trial court, it was entirely within the
trial court’s discretion to determine that Michael had failed to present any
extraordinary circumstances that would necessitate an extension. See Shaw
v. Texas Dep’t of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL
2504460, at *8 (Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem. op.)
(not designated for publication) (holding that the appellant had not shown that
needing more time after failing to make progress on the service plan for eight
months amounted to “extraordinary circumstances” that necessitated the
granting of the continuance). Thus, we hold that the trial court did not abuse
its discretion, and we accordingly overrule Michael’s first issue.
IV. S UFFICIENCY A RGUMENTS
In his second issue, Michael argues that the evidence is legally and
factually insufficient to support the trial court’s findings that he endangered the
children’s welfare according to sections 161.001(1)(D) and (E) of the Texas
8
Family Code. See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E). He also
challenges the factual sufficiency of the evidence regarding the trial court’s best
interest finding. See id. § 161.001(2). In her two issues, Stacy argues that
the evidence is legally and factually insufficient to support the trial court’s best
interest finding. See id.
A. Standards of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
not absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that
right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the
State seeks not just to limit parental rights but to end them permanently—to
divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit. T EX.
F AM. C ODE A NN. § 161.206(b) (Vernon Supp. 2007); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and
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strictly construe involuntary termination statutes in favor of the parent. Holick,
685 S.W.2d at 20–21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort
Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth
10
of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
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In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated a provision of section 161.001(1)
and that the termination of the parent’s parental rights would be in the best
interest of the child. C.H., 89 S.W.3d at 28. If, in light of the entire record,
the disputed evidence that a reasonable fact-finder could not have credited in
favor of the finding is so significant that a fact-finder could not reasonably have
formed a firm belief or conviction in the truth of its finding, then the evidence
is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Endangerment Findings
The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has engaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child. T EX. F AM. C ODE
A NN. § 161.001(1)(E). Endangerment is defined as exposing to loss or injury,
to jeopardize. 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 physical or emotional well-being
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was the direct result of the parent’s conduct, including acts, omissions, and
failures to act. Id. Termination under subsection (E) must be based on more
than a single act or omission; a voluntary, deliberate, and conscious course of
conduct by the parent is required. Id. However, it is not necessary that the
parent’s conduct be directed at the child or that the child actually suffer injury.
Boyd, 727 S.W.2d at 533. The specific danger to the child’s well-being may be
inferred from parental misconduct standing alone. Id.
To determine whether termination is necessary, courts may look to
parental conduct both before and after the child’s birth. In re R.W., 129
S.W .3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). As a general
rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child. Id. at 739. Drug
use and its effect on a parent’s life and his ability to parent may establish an
endangering course of conduct. Id. Further, while mere imprisonment, alone,
will not constitute a course of conduct that endangers the emotional or physical
well-being of a child, it is a factor to be considered in the determination. See
Boyd, 727 S.W.2d at 533–34.
The evidence demonstrates that Michael has had issues with substance
abuse both before and after CPS removed the children. Michael began using
cocaine at some point in 2005 after Stacy’s relapse in 2004. The couple in
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fact used a portion of Michael’s disability check to pay for the cocaine. Michael
testified that “before this happened,” referencing the removal of the children,
he had used drugs only four or five times. Bethany Hooser, a CPS investigator,
testified without objection, however, that Michael admitted to her co-worker on
the night of the removal that he “used daily.” Michael also stated that he had
not used drugs for two weeks prior to the removal, but again, this is contrary
to Hooser’s testimony that Stacy had told her on the night of removal that the
couple had smoked crack only two days before the removal.
CPS did not ask Michael to take a drug test on the night of the removal,
but later, in January 2007, Shawna Wells, a CPS caseworker, asked Michael
to take a drug test, which he refused. He refused for fear that he would miss
an appointment at the shelter and potentially risk not having a place to live.
Michael told Wells that he quit using drugs in April 2007, six months after CPS
removed the children. Wells again asked Michael to submit to a drug test. He
complied and took a hair follicle test on May 17, 2007. Wells reported to
Michael, according to his testimony, that the test revealed that he had been
using “day and night.” And in fact, W ells testified that because of the “high
volume” in his drug test, she encouraged him to go into inpatient treatment.
Wells even offered to drive Michael to inpatient treatment, but he refused and
14
told Wells that he did not need inpatient treatment and that his meetings with
Narcotics Anonymous (NA) were sufficient.
Michael testified that he attempted to enter CATS, an outpatient drug
treatment program, but that the program would not admit him because the
results from a second drug test showed that he had been “clean too long.”
Wells contacted the CATS program and found out that he had not met with a
representative at the program for treatment.
Although Michael maintained that he quit using cocaine in April 2007, the
evidence shows that Michael has had trouble in the past remaining sober even
after he completed treatment in Harris County for his alcohol abuse. Given his
history with substance abuse and in particular the fact that he used drugs for
six months while the case was pending, the trial court could have inferred that
Michael’s substance abuse issues would likely recur and further jeopardize the
children’s well-being. See R.W., 129 S.W.3d at 741.
There is additional evidence demonstrating a history of arrests. Michael
served time after he was arrested for breaking into a house in Michigan.
Michael rebutted this by saying that this incident occurred in the 1970s when
he was “a kid.” While living in Arkansas, Michael served three months in
county jail for domestic violence, but Michael contends that the State released
him early because a blood test revealed that someone had spiked his drink with
15
Visine, causing him to go “crazy” and “completely nuts.” In Harris County,
Michael served three days for driving on a suspended license. And most
recently, after CPS removed the children, Michael was arrested for stealing
three cases of beer and spent two weeks in jail for theft. Michael stated that
he had intended to sell the beer so that he could pay for a motel room. The
State then released Michael on bond, but he was rearrested shortly after his
release for failing to appear at a hearing because he lacked transportation.
While some of these incidents are isolated and in the distant past, the
most recent incident involving theft and the subsequent arrest for failing to
appear occurred while the current suit was pending. The trial court was
entitled to take that into consideration along with Michael’s drug use in
determining whether Michael had engaged in a course of conduct that
endangered the emotional or physical well-being of the children. See Boyd, 727
S.W.2d at 533–34.
Viewing the evidence in the light most favorable to the judgment, we
conclude that the evidence is such that a fact-finder could reasonably form a
firm belief or conviction that Michael engaged in conduct or knowingly placed
the children with persons who engaged in conduct that endangered the physical
or emotional well-being of the children. See T EX. F AM. C ODE A NN.
§ 161.001(1)(E); J.P.B., 180 S.W.3d at 573. Thus, the evidence is legally
16
sufficient to support the trial court’s findings under section 161.001(1)(E).
Further, when considering the entire record, we hold that a fact-finder could
reasonably form a firm conviction or belief that Michael violated section
161.001(1)(E). And while there is conflicting evidence regarding the extent of
Michael’s drug use, the trial court, as the fact-finder, enjoys the right to resolve
conflicts within the evidence. See In re T.N., 180 S.W.3d 376, 382 (Tex.
App.—Amarillo 2005, no pet.). The trial court could have freely chosen to
believe all, part, or none of the testimony espoused by any particular witness.
Id.; see also R.W.,129 S.W.3d at 742 (stating that the fact-finder’s function “is
to judge the credibility of the witnesses, assign the weight to be given their
testimony, and resolve any conflicts or inconsistencies in the testimony”). The
disputed evidence that a reasonable fact-finder could not have credited in favor
of the finding is not so significant that a fact-finder could not reasonably have
formed a firm belief or conviction in the truth of its finding. See H.R.M., 209
S.W.3d at 108. Accordingly, the evidence is also factually sufficient to support
the trial court’s finding that Michael violated section 161.001(1)(E).
Because we have held that the evidence is legally and factually sufficient
to support the trial court’s finding under section 161.001(1)(E), we need not
address whether the evidence is sufficient to support the finding under section
17
161.001(1)(D). See R.W., 129 S.W.3d at 744 (stating that only one finding
under section 161.001(1) is necessary to support a judgment of termination).
C. Best Interest Findings
In his third point, Michael argues that the evidence is factually insufficient
to support the trial court’s best interest finding. Likewise, Stacy argues in two
points that the evidence is legally and factually insufficient to support the trial
court’s best interest finding. Because the evidence is largely the same for the
analysis of both Michael’s and Stacy’s points, we will consolidate our review.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include the following:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and
in the future;
(3) the emotional and physical danger to the child now and
in the future;
(4) the parental abilities of the individuals seeking custody;
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(5) the programs available to assist these individuals to
promote the best interest of the child;
(6) the plans for the child by these individuals or by the
agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are
not exhaustive; some listed factors may be inapplicable to some cases; other
factors not on the list may also be considered when appropriate. C.H., 89
S.W .3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. Id. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
Evidence of a parent’s unstable lifestyle can also support a fact-finder’s
conclusion that termination is in the child’s best interest. In re M.R., 243
S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). A parent’s drug use,
inability to provide a stable home, and failure to comply with a family service
plan support a finding that termination is in the best interest of the child. Id.
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Stacy testified that the children want to come home and that they are
happy at home. Wells also stated that the children love their parents. But even
taking this factor into consideration, there is ample evidence to support the trial
court’s finding that the termination of parental rights is in the children’s best
interest.
The most salient evidence presented at the hearing concerned the
parents’ drug abuse before and after the children were removed. Michael’s
drug history is detailed above, and Stacy has had an even longer, more
troubling history with cocaine abuse, dating back to her time in Harris County
when her children were first removed by CPS because S.D.P. had tested
positive for cocaine. After CPS initially removed the children, Stacy entered a
rehabilitation program but later relapsed in 2004. At trial, Stacy maintained
that she had never used drugs in front of her children but that she instead used
drugs in the bathroom of the hotel room while the children were asleep. Stacy
admitted to using crack often.
Stacy attended CATS meetings but was eventually discharged based on
her nonattendance. She testified that she did not want to quit but that she had
no transportation to get to the meetings. Stacy had also gone to Step One and
NA meetings to help her with her rehabilitation. However, like Michael, Stacy
refused to go to inpatient drug treatment at CPS’s request, even though Wells
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offered to drive her to the facility. Both parents admittedly used drugs after
CPS removed the children, but they both claim to have quit using as of April
2007. As we stated above, the trial court was entitled to infer that the
parents’ drug abuse might continue in the future and endanger the children’s
well-being. See R.W., 129. S.W.3d at 741.
Stacy argues that while the evidence demonstrates that she had problems
with drug abuse, “the best interest finding lacks a firm factual basis apart from
the ‘offending behavior,’ [which Stacy] has affirmatively corrected.” We
disagree given the following evidence presented at trial.
Stacy and Michael are not currently employed. Michael worked a few
odd jobs but stated that he had not worked since December 2004 or January
2005. Michael asserted at trial that he could not find employment in his
profession as a welder because of the injuries he suffered after performing a
plumbing job. He also stated that he had tried unsuccessfully to find work for
two weeks as a day laborer in Arlington, Texas. Stacy, on the other hand, has
not been employed since coming to Tarrant County. She testified that she had
applied at Kroger and Wal-Mart but that no one had hired her. For income, she
relies on $1,800 that L.D.K., M.L.P., and S.D.P. receive for their medical
issues. Stacy is waiting on MHMR to turn in her paperwork so that she can
also receive a disability check for her depression and bipolar disorder.
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The evidence regarding the family’s instability is particularly troubling
given the emotional and physical needs of the children. L.D.K. has been
diagnosed with bipolar disorder, learning disorder, mathematics disorder, and
sibling-relations disorder. Wells reported that while L.D.K. still has issues, he
is doing much better since he has been in CPS’s care. M.L.P. has been
diagnosed with bipolar disorder, attention deficit hyperactivity disorder (ADHD),
and phonological disorder. S.D.P. has been diagnosed with ADHD, nocturnal
and diurnal enuresis, provisional phonological disorder, developmental
coordination disorder, and mild mental retardation.
Stacy stated that she had taken L.D.K. and M.L.P. to MHMR for help with
their bipolar disorders and that MHMR eventually came out to visit Stacy and
Michael at their hotel room to work on parenting skills for children with special
needs. Wells testified that while the children love their parents, they are very
high maintenance, and the parents do not have the ability to care for the
children. L.D.K., M.L.P., and S.D.P. are all at least a grade level behind, and
Wells went as far as to say that they were “extremely behind.” Wells also
testified that the children were behind socially but that they have made
“extreme progress” in areas dealing with behavior and appropriate social
boundaries. Wells testified that D.E.P. was not behind developmentally when
CPS took custody of him but that he is not talking as much as he should.
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Stacy attempted to home school the children in the 2005–2006 year, but
she eventually realized that “[she] didn’t know what [she] was doing.” The
next year, the children started school late because the school would not accept
them without their proper medications. Stacy claimed that initially she could
not afford the medications because she had to use the monthly checks that the
children received for their medications to pay for a hotel room. Stacy claimed
that the children were taking their medications daily when they were removed.
Lallay T., the foster parent of S.D.P. and M.L.P., testified that when
S.D.P. first came to her house at age five, she still wore diapers, her fine motor
skills were extremely slow, and she could not put on any item of clothing. She
stated that as of the time of trial, S.D.P. could still not open a door or eat with
a fork. Lallay observed M.L.P. and S.D.P. go up to complete strangers and beg
for food. She also observed both children inappropriately use toys in a sexual
manner.
The children’s coordinator at the Arlington Life Shelter recalled that D.E.P.
was “pretty dirty” on the night of the removal. Hooser remembered the other
children being “somewhat dirty [and] unkempt” when CPS removed them from
the hotel room, which Michael disputes, stating that the children had brand new
clothes on when CPS removed them. Further, Lallay said that when S.D.P. and
M.L.P. first arrived at her house, they were “totally infested” with lice.
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There is also evidence demonstrating that the parents failed to complete
their service plan, which included, among other things, parenting classes, drug
assessments, bipolar and ADHD education classes, and counseling sessions.
Stacy said that she had completed a psychological evaluation through MHMR
but not through the doctor CPS requested. Stacy said that she had tried to
contact the doctor that CPS provided but that no one called her back. In fact,
Stacy said that she had called the doctor every day from January until the trial
in August. Stacy testified that she had not completed her education classes
and that she had not gone to TCADA for her drug abuse. Wells testified that
the parents had not completed the requested psychological evaluations or
parenting classes.
Michael argues that because the service plan referred to Michael P. as
“Mr. [K.]” in the body of the document that Michael did not know what
services he was required to complete. Michael maintained at trial that he had
never received a copy of the service plan or “any paperwork” that Wells
claimed she had personally delivered to the parents. He later stated, however,
that he “never denied knowing that [he] needed services” but that W ells had
explained to him that all he had to do was participate in drug rehabilitation,
attend parenting classes, and take a psychological evaluation. Michael said that
he “tried to” complete drug rehabilitation, completed his psychological
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evaluation through MHMR, and attended one parenting class before losing
transportation.
Contrary to Michael’s testimony that he was unaware of what services
he had to complete, Wells stated that in January 2007, she personally delivered
the service plan to the parents along with a letter that was more specific with
addressees and phone numbers of the facilities where the parents could
complete the services. Wells also testified that before she visited the parents,
she had called them on the telephone to go over the service plan. Wells said
that she was “very, very specific” about what was expected of the parents and
where they had to go to complete their services. Wells stated that the parents
understood that they were receiving a service plan, that they told her that they
would work services, and that they wanted to do everything they could to
regain custody of their children.
Regarding placement after termination, DFPS plans to find adoptive
homes for all the children. None of the current foster parents were dual-
licensed as of the time of trial, although Lallay showed an interest in obtaining
a dual-license. Wells testified that if Stacy’s and Michael’s parental rights were
terminated that DFPS could “absolutely” find an appropriate adoptive home for
the children. When the children were initially removed, some of the children
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were placed in separate homes,3 but Wells stated that it is DFPS’s policy to first
try to find a home for all four children after termination. Nicole Batson, a
licensed professional counselor, provided therapy for M.L.P. and S.D.P. and
stated that the girls need consistency and structure, that they have probably
not had much stability given their struggles with small tasks, and that they both
have an ability to move on and bond with a new family. W ells echoed these
thoughts and stated that the children were adoptable and able to move on to
a new life.
Conversely, Michael and Stacy have shown little ability to provide a stable
environment for the children if they were returned. Before the removal, the
family lived in multiple hotels and shelters. Stacy stated that she had recently
stayed at a free shelter in Parker County but was asked to leave for
noncompliance with shelter rules. Michael at one point stole beer from a
convenience store so that he could sell it and pay for a hotel room. Eventually
the couple lived out of their car, which was repossessed on the first day of trial.
There was testimony that the family was looking to find an “all bills paid”
apartment, but the family had not yet found such a place. The parents claimed
3
… L.D.K. was initially placed in a separate foster home because he
sexually “perpetrated” S.D.P. when the children were temporarily living in a
shelter. CPS separated D.E.P. from the other children for his protection
because M.L.P. and S.D.P. had “perpetrated” on him.
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that they had not been able to get housing before because they were making
car payments and paying for car maintenance, but Stacy stated that she could
find a place in the next few weeks after the trial, once the next check arrived.
Stacy applied to Shelter Plus but missed her appointment with the housing
representative. She claimed that she had not been able to get in contact with
anyone at Shelter Plus to set up another appointment.
Finally, Stacy testified that the children could possibly live with Michael’s
sister in Michigan even though she had not informed her attorney about this
possibility as of the time of trial. Michael stated that he had not even spoken
to his sister. Stacy maintained that she and Michael had informed Wells about
the children’s aunt, but Michael testified that he had only told Wells the day
before trial. There is little testimony in the record about the aunt other than she
apparently does not have a criminal history and has two older children.
We acknowledge the hardship that a family faces when displaced from
a home because of a natural disaster such as a hurricane, but Stacy and
Michael have had ample time to try to find employment, find housing, and
improve their overall living conditions. As noted by DFPS, through the course
of the case, Stacy and Michael have received services and benefits from CPS,
SSI, MHMR, and FEMA, but the family has not been able to utilize those
services to provide a stable and consistent life for their children. After
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reviewing the entire record, we hold that the evidence is both legally and
factually sufficient to support the trial court’s finding that the termination of
Stacy’s and Michael’s parental rights is in the children’s best interest.
Accordingly, we overrule Michael’s third issue and both of Stacy’s issues.
IV. C ONCLUSION
Having overruled all of Michael’s and Stacy’s issues, we affirm the trial
court’s judgment.
PER CURIAM
PANEL F: HOLMAN, J.; CAYCE, C.J. and LIVINGSTON, J.
DELIVERED: July 31, 2008
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