TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00086-CV
A. L. G. A. and W. F. A. M., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 17-0150-CPS395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING
MEMORANDUM OPINION
A.L.G.A. (Mother) and W.F.A.M. (Father) appeal from the trial court’s order
terminating their parental rights to their children Wayne, born in February 2008; Judy, born in
February 2011; Kate, born in August 2015; and Matt, born in September 2016. 1 In a bench trial
held in January 2019, the trial court found that termination was in the children’s best interest, see
Tex. Fam. Code § 161.001(b)(2), and that Mother and Father had placed the children or allowed
them to remain in surroundings that endangered them, see id. § 161.001(b)(1)(D); engaged in
conduct or placed the children with someone whose conduct endangered the children, see id.
§ 161.001(b)(1)(E); and failed to comply with a court order that established actions necessary to
regain custody of the children, see id. § 161.001(b)(1)(O). The court further determined that
1 We will refer to the children by pseudonyms. See Tex. R. App. P. 9.8. Father is the father of Wayne, Judy, and Matt. The rights of Kate’s father, whose identity is unknown, were also terminated, but he is not a part of this appeal. Mother had a mental illness or deficiency that made her unable to provide for the children, see
id. § 161.003, and that Father had used a controlled substance in a manner that endangered the
children and had either not completed a treatment program or, after completing such a program,
had continued to abuse a controlled substance, see id. § 161.001(b)(1)(P). On appeal, both
parents challenge the best-interest determination. Mother also challenges the statutory grounds,
asserts that her due process rights were violated because the Texas Department of Family and
Protective Services did not provide adequate language translation throughout the underlying
proceeding, and argues that the Department did not make reasonable efforts to provide services
to Mother. We affirm the trial court’s order of termination.
STANDARD OF REVIEW
To terminate a parent’s rights to their child, the Department must prove by clear
and convincing evidence that the parent engaged in conduct that amounts to a statutory ground
for termination and that termination is in the child’s best interest. Id. § 161.001; In re S.M.R.,
434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is proof “that 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 § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In
reviewing the sufficiency of the evidence, we must “provide due deference to the decisions of the
factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole
arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,
503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
In evaluating the legal sufficiency of the evidence, we look at “all the evidence in
the light most favorable to the finding to determine whether a reasonable trier of fact could have
2 formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002); Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.—Austin 2004, pet. denied).
We “assume that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so” and will “disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible.” J.F.C., 96 S.W.3d at 266. Our review does not
require that we disregard undisputed evidence contrary to the determination. K.M.L.,
443 S.W.3d at 113. If after viewing the evidence in the proper light, including undisputed
evidence that does not support the findings, we conclude that no reasonable factfinder could have
formed a firm belief or conviction that the Department carried its evidentiary burden, we will
hold that the evidence is legally insufficient. J.F.C., 96 S.W.3d at 266; Williams, 150 S.W.3d
at 449. In considering the factual sufficiency, we consider the entire record and ask whether the
“disputed evidence is such that a reasonable factfinder could not have resolved that disputed
evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266. If the disputed evidence that could
not be credited in favor of the finding is so significant that a reasonable factfinder could not have
formed a firm belief or conviction as to the truth of the Department’s allegations, we will hold
that the evidence is factually insufficient. Id.
FACTUAL & PROCEDURAL SUMMARY
In September 2017, the Department filed its original petition seeking
conservatorship of Matt, who was a year old, after it received referrals on August 30 and 31
alleging physical abuse and physical and medical neglect by Mother and after a pediatric surgeon
refused to discharge Matt into Mother’s care. An affidavit by Department supervisor Natalie
Kramer was attached to the petition. Kramer averred that Matt was significantly
3 developmentally delayed, had been hospitalized multiple times for feeding issues, and had a
feeding pump and a G-tube or G-button installed. 2 Those devices had been inserted because
Mother had reported that Matt “aspirates and vomits when being fed by mouth.”
The affidavit further stated that Mother had recently brought Matt to the Dell
Children’s Hospital emergency room for the fourteenth time, 3 asking that he be admitted and that
she and her other children be given a room at the Ronald McDonald House. However, hospital
staff “do not ever observe the infant to have the same issues” Mother would report during the
frequent hospital visits. Staff told the Department that Mother “continues to report making the
child’s condition worse than it is” and that “[t]here is worry that mother is having the child
undergo surgery and medical test unnecessar[ily].” In addition to the fourteen visits to Dell
Children’s Hospital, Mother had brought Matt to another emergency room three times in the last
month, “[e]ach time with concerns that mother reports that no other medical professional
witnesses.” The Department further received a report that Mother had thrown away Matt’s G-
tube and feeding pump, which had been provided five days earlier, and that insurance would
generally only approve a new one every five years. The Department’s affidavit stated that
Mother’s living situation was unstable and that there were concerns that Mother was homeless
and was seeking Matt’s repeated hospitalization so that she could stay at the Ronald McDonald
House. However, the affidavit explained, the Ronald McDonald House would no longer accept
Mother because of her frequent requests to stay there, “along with asking for money, food, and
gas money while she is there despite . . . having food stamps.”
2 In this record, “G-tube” and “G-button” seem to be used interchangeably to refer to a gastrostomy tube, which is a medical device placed through the patient’s abdomen into his stomach, allowing nutrition and medication to be delivered directly to the stomach. 3 The affidavit does not state the time frame during which those visits occurred. 4 The affidavit stated that the Department was involved with the family due to
“significant mental health concerns” about Mother, who is an undocumented immigrant, had
been both victim and perpetrator of domestic violence with Father, and had been diagnosed as
bipolar. The affidavit further stated that Mother suffers from severe depression, that she had a
history of suicidal and homicidal ideations, and that “[t]here is an ongoing worry that she fails to
maintain her medication to treat her mental health concerns.” Father is also an undocumented
immigrant who had been deported in 2014 due to allegations of domestic violence against
Mother and had since returned and was believed to be living in Dallas.
The affidavit recited the Department’s history of involvement with the family,
saying it had been working with the family “nonstop” since May 2012, “with only two short
breaks of case closures.” The first referral, alleging neglectful supervision by Mother, was
received in mid-2012—the children were removed after Mother said she was depressed and had
suicidal thoughts and then later were returned to her care. In late 2013, the Department received
another report of neglectful supervision, as well as an allegation that Wayne had been sexually
assaulted—the investigation closed in early 2014, and at its conclusion, the children were
allowed to stay with Mother. In August 2015, the Department received a report that Mother
went “for periods of time with untreated Depression and Bi Polar”—that investigation closed in
January 2016. Six months later, the Department received a report alleging: physical neglect by
Mother and Father; that Mother left the children with a friend while she went to Dallas for work,
during which time the friend’s husband attempted to molest Judy; and that Mother had assaulted
Father. That case remained open until a Family Based Safety Services case was opened in 2017.
In June 2017, the Department received an allegation of medical neglect stating that Mother had
refused to feed Matt “because she reports that he would throw up every time she fed him,” that
5 medical professionals did not observe the swallowing issues reported by Mother, and that Mother
“insisted that [Matt] be hospitalized, despite no medical need.” That case was closed because the
family was already “involved with Family Based Safety Services.”
The Department received the most recent referrals in late August and early
September 2017. In October 2017, the Department filed an amended petition seeking
conservatorship of the three older children as well. The Department explained that concerns had
arisen during its investigation into the allegations related to Matt; that since Matt’s removal, the
Department had “continue[d] to receive ongoing concerns by all those who interact” with Mother
and her children; that Mother had refused to cooperate with the Department’s safety plan or its
efforts to offer her services; and that since Matt’s removal, there were concerns that “one of the
other children may be at risk of [Mother’s] exaggerating a medical condition to gain resources
and housing while that child is hospitalized.”
In its January 2019 bench trial, the trial court heard testimony from both parents,
hospital social worker Rachel Union, therapist Yolanda Moreno, Department supervisor Natalie
Kramer, therapist Lisa Peterson, Department investigator Justin Vavra, Department caseworker
Laisdy Sparks, psychiatric nurse practitioner Katherine Brinkmann, the children’s court-
appointed special advocate (CASA) Whitney Piedfort, and several other witnesses.
The Department introduced into evidence some of Matt’s medical records, in
which hospital personnel expressed significant concerns about Mother’s care for Matt because
she was confrontational and irrational and gave reports that conflicted with medical observations.
The records reflect that Mother had difficulty understanding Matt’s medical issues—hospital
staff did not know whether it was due to a lack of knowledge or an unwillingness to accept the
information. By the time Matt was a year old, Mother had already been given three feeding
6 pumps because they kept being “thrown away” by Mother or others in the household. Further,
during some hospital visits, Mother denied that Matt had had bowel movements or wet diapers,
but nurses found wet or dirty diapers concealed in the trash. One note said, “Mom is interfering
with her son’s care. Social work has been working with CPS and been make [sic] aware of her
hiding wet diapers.”
Rachel Union testified that she was involved in arranging housing and other
services for the families of patients at Dell Children’s Hospital. She said that she eventually
became “suspicious” about Mother’s seeking assistance “because the information she was
providing kept changing.” Union came to believe that Mother “had another motive, other than
truly being homeless,” but Union never knew what that motivation might be. Union further
testified that Mother “frequently presented with concerns that the child was vomiting, and none
of us had witnessed the child vomit.” When medical staff attempted to test Matt’s tolerance for
taking food by mouth, Mother interfered, feeding him via his G-tube before staff could give him
a bottle. Union had concerns about Mother’s interactions with her older children as well, saying
that Mother got frustrated and impatient and sometimes seemed unresponsive when one of her
younger children was hurt by a sibling’s aggressive behavior. She said Mother “kept coming in
and things kept developing, and then I kept seeing the actions between the children and with her,
and then taking [Matt] to seek care elsewhere and talking to other people in the hospital about his
care . . ., then I became very concerned about her ability to care for the children.” Mother once
told Union that her phone had been dropped in a bucket of water by her then-two-year old while
Mother was sleeping all day, raising Union’s concerns about Mother’s ability to supervise the
children. Finally, Union testified that Mother had told her that she had bipolar disorder but was
not taking her medication because it made her tired.
7 Caseworker Laisdy Sparks testified about the medical issues of the three oldest
children. She explained that Matt “was initially diagnosed with failure to thrive, and because of
that, he has—has a lot of developmental delays.” He has a G-tube “where he receives the
majority of his feedings,” and he needs speech, occupational, and physical therapy, as well as a
number of medical specialists. When the Department took Matt into custody at about a year old,
he could not sit or crawl. Since his removal, he had learned to walk and was beginning to speak,
he was “[a]lmost on track” developmentally, and he was “happy and content and doesn’t seem to
be in any type of distress.” When Judy first came into Department care, her development was so
delayed that there were concerns that she was intellectually disabled, but testing shows she has
an IQ “in the 80s,” which is in the low normal range. Sparks testified that since her removal,
Judy takes medication for ADHD, she no longer has the same level of tantrums at school or at
home, her reading levels and social skills had “increased tremendously,” and she was passing her
classes. Medical testing conducted after the children’s removal showed that Wayne has fatty
liver disease—Sparks testified that Mother knew about Wayne’s liver disease before the removal
but neglected to tell the Department. Because of his liver disease, Wayne has specific nutritional
and dietary needs, and since his removal, Wayne had been losing weight and his health has
improved. Doctors have reported that the disease will “go away completely” if he continues to
eat well and lose weight, but if he were to return to his old diet, his disease could return and
could eventually lead to autoimmune hepatitis.
Sparks testified that Judy and Wayne had been placed together in their foster
home and that both children had shown improvements in school and at home and were in
ongoing “trauma-based therapy.” Kate was in a different foster home from her siblings, the
same home in which she was placed at the beginning of the case. She was not yet old enough for
8 school and did not need therapy or special assistance. Matt was in a specialized placement
where his foster parents have medical training and the ability to care for a child with special
needs. Sparks testified that all three of the foster homes were “long-term placement[s]” that
could be permanent and that the children were all thriving in their placements.
Sparks described Mother’s behavior throughout the case as erratic, disruptive, and
hostile. Mother seemed to have difficulty understanding and following the rules related to
visitations, such as bringing items she had been told were not allowed or disrupting Father’s
visits. She would come to Department offices without having made an appointment, and “there
have been times when [Mother] tells stories, and her stories are not consistent with, like, reality
and, like, what really happened.” Sparks also said that when Mother “gets angry, . . . she can be
a little scary.” Sparks testified that she had tried to text with Mother and Mother’s attorney to
communicate because she did not want her “words to be twisted.” Sparks testified that she was
fluent in Spanish, that Father never complained about her Spanish, and that she and Father did
not have difficulty communicating. Sparks did not believe Mother had trouble understanding
Sparks’s Spanish and said that Mother sometimes spoke to her and the children in English.
Sparks testified that Mother was generally appropriate in visits and was always
eager to see her children. The children were likewise always happy to see her and sad when the
visits were over. Mother could explain most of the children’s various needs to Sparks and had
complied with many of the requirements set out in the court order. However, Sparks explained
that the Department’s concerns about Mother’s parenting abilities are related to her suicidal and
homicidal ideations, her suicide attempt, and her temperament, noting that Mother assaulted
Father’s then-girlfriend while the case was pending, had become confrontational with foster
parents, and had repeatedly disrupted Father’s visitations. Further, Mother’s living situation had
9 been unstable throughout the case, and Mother had continued to bring unhealthy food to her
visits, which is particularly dangerous for Wayne due to his liver condition.
Sparks testified that although Father had largely complied with the requirements
placed on him, he had not abstained from illegal substances. Sparks explained that all six of
Father’s random urinalysis drug tests were negative but that he tested positive for cocaine in
three hair follicle tests taken in March, July, and October 2018. In those tests, the level of
cocaine steadily decreased, and a test taken shortly before trial was negative for all substances.
However, Sparks referred to an “advisory” filed with the trial court that stated that it was the
opinion of Marco Quesada, the Department’s “subject matter expert in substance abuse,” that the
March test detected use from mid-December 2017 to mid-March 2018 and that the July test
showed use from late March 2018 to late June 2018. Quesada concluded “that the cocaine use
was not a onetime event, as these two drug tests capture two different time frames and do not
overlap.” Similarly, Sparks said, the October drug test indicated continued drug use. However,
Sparks testified that she never had any concerns that Father had been drinking or using drugs
before his visitations.
Sparks testified that during Father’s visitations, he was playful and attentive,
behaved appropriately, and brought healthy food and drinks for the children. She said the
children are always happy to see Father and that they “care for their dad and the feeling is mutual
with Dad.” Father was never uncooperative or disruptive, and Sparks did not have any issues
with him doing his services. Although Sparks testified that Father had not paid court-ordered
child support, she agreed that he had been “providing financially for the children” and that he
brought food, clothes, toys, money, and other gifts to visits. He had obtained an apartment,
shown stability in his employment and housing, completed a psychological evaluation and
10 therapy, completed parenting classes, passed his urinalyses, notified the Department when
Mother tried to contact him in violation of the court order, and contacted Sparks throughout the
proceeding to check on the children and their medical needs. Nonetheless, Sparks testified that
the Department “has concerns about [Father’s] plan for day care,” because of its “concerns”
about Carmelita Gonzales, the person Father planned to use for care and the same woman with
whom Mother lived for much of the proceeding. The Department had done a home study and
determined that Gonzales’s house would not be an appropriate foster placement. However,
Sparks agreed that Gonzales did not have a criminal history and that she worked at a certified
day care facility where Father intended to place the children, rather than in Gonzales’s home.
Sparks did not think Father fully understands Matt’s or Judy’s needs and she
believed he would have difficulty meeting Matt’s medical needs as a single father working six
days a week. She explained that day care centers generally cannot accept children with Matt’s
needs because they are not qualified to care for him. Sparks noted that Father “wasn’t able to
express or verbalize the individual needs of each child,” although she also admitted that she had
needed a list to be able to testify as to all of Matt’s medical conditions. She further agreed that if
Father regained custody, he would be able to get nursing assistance from the State for Matt.
Department supervisor Natalie Kramer testified that Mother had twice completed
her offered services but never changed her behavior as a result. She said that the Department had
concerns about Mother’s mental health and parenting abilities in part because Mother had
progressed from having suicidal thoughts to making a plan to attempting to carry out that plan.
Kramer further testified that Mother’s suicidal tendencies seemed to occur when “she’s
overwhelmed and left with the children because Dad was either deported or gone or she just has
the kids and she’s unstable and depressed.”
11 Whitney Piedfort testified about Wayne’s health and educational improvements
since being placed in foster care and about Judy’s improvements in school and the management
of her ADHD. She said that both of the older children were in therapy and were working
through their past trauma. Piedfort further testified that one of the main concerns throughout the
Department’s involvement with the family was “the unstable housing and the constant moving”
and that “the number of times that [Wayne and Judy] moved schools by the time is abnormal for
a child that needs consistency.” Asked why she recommended termination instead of permanent
managing conservatorship, Piedfort said that “with a PMC, my concern that there’s still a limbo
of what’s going to happen” and that “my concerns is that nothing is going to necessarily change”
because the family had been offered services before with little positive effect. She was
concerned that Mother would not be able to meet all of the children’s various needs and that she
was not stable, either with her mental health or with her housing. She was also troubled that
Mother did not tell the Department about Wayne’s liver disease, leaving the Department to
discover it on their own. As for her concerns about Father, Piedfort said:
For Dad, the drug concern is probably the biggest piece for me. Throughout the duration of the case, there have been three different positive drug tests. Dad is a fun dad. He—the kids do love him. There’s no doubt about that at all. But the— for the duration of the case, when you have three positive drug tests, that’s not putting your child first and ensuring that they have a stable, safe place to be able to thrive. Dad has testified to the fact that his plan for childcare is to place [them with Carmelita Gonzales], who CPS has already ruled is not a fit placement. So even just the judgment call of that is a concern, that he feels that is an appropriate placement.
Piedfort testified that Wayne, “at this point, he just wants an answer. He wants
something to be final. He needs a permanent place of knowing ‘Hey, this is what’s going to
happen.’” Piedfort said that Wayne loves his parents but understands that he might be adopted
12 as part of the Department proceeding and that when he was told of the possibility of adoption by
his current foster family, “he expressed being very excited” and “talked about being excited
about his last name being changed to theirs.” She further testified that Matt had made significant
physical strides since being removed from his parents’ care, going from “developmentally the
age of a four-month-old” to being “caught up to where a two-year-old should be.” Matt’s foster
family was working on his swallowing issues, with the intention that his feeding tube would be
removed at some point, and Piedfort testified that Matt was very happy and loved to play. Kate,
who does not have special needs, had bonded with her foster home and had never asked for
Mother, only for her grandparents and, after visitations had begun, Father. Piedfort testified that
the three foster families were working together to maintain the sibling connection and that all the
placements had given the children “the stability, the support that they have received, the ability
to get them to the appointments and the therapies that they have needed . . . .”
Father testified that he came to the United States legally in 2006 or 2007 but did
not appear for a permit hearing and therefore became subject to a deportation order. He was
deported under that order in 2011 due to domestic violence reported by Mother. 4 He returned
illegally in 2013 or 2014, initially living in Dallas for several months “to avoid problems with
the mother. I did not want to come straight to Austin until everything was clear.” He returned to
Austin after about six months, working for the same employer for whom he had worked before
his deportation. Father works in construction and usually works six days a week, eight to ten
hours a day. He testified that his employer was fairly flexible and supportive of his employees if
they have family situations that require them to leave early.
4 Mother and Father each testified about the domestic-violence report. Mother testified that Father had grabbed her by the throat when he was intoxicated, while Father testified that Mother had lied in claiming he had assaulted her. 13 Father said he did not know about Matt’s repeated hospitalizations because
Mother did not inform him, and he insisted that he had only used cocaine once and had never
used other illegal drugs. Father testified that early in the proceeding, Mother had assaulted his
then-girlfriend, Leslie, giving her a black eye. He also testified that Mother had at least once
assaulted him. At the time of trial, he was dating a woman named Nancy, who is a legal resident
and not at risk of being deported. Although Mother had sent Nancy texts disparaging Father, she
had not threatened or assaulted her.
Father said that throughout the proceeding and his completion of services, he had
come to realize that he had mistakenly focused on supporting Mother, as the children’s mother
and primary caregiver, rather than on the children themselves—“my mistake was to trust in her,
to trust that she will take care of the kids and that she will do everything for the kids and I will
just provide for them.” He had learned to be more involved and to place them first. Father
testified that the Department had placed the children with him for about six months in 2014
before returning them to Mother’s care and that the Department never expressed any concerns
about his caring for the children. He admitted that he did not see the children very much after
they were returned to Mother because he was working long hours and because he has problems
with Mother, explaining, “It’s very difficult to talk to her. And she will tell me that she would
rather give the kids to someone else than for me to have them.”
Father testified that if he regained custody, Nancy could provide daytime care for
the children, and that if he were to be deported again, his aunt in Dallas would care for the
children. Father did not know what grades his eldest children were in and could not give full
answers when asked about the children’s medical issues, but he asserted that he had been asking
the doctors but had not been given that information. Father admitted that he had never been to
14 the children’s schools, attended any parent-teacher conferences, or attended any of Matt’s
medical appointments, saying he would work and Mother would handle all issues related to the
children. When asked about Judy’s medical issues, Father said, “Well, they say that, you know,
she’s got an illness, but what I think is that she just wants attention.”
Mother testified, disputing much of the testimony by Father and the Department’s
witnesses. Mother asserted that Sparks did not speak fluent Spanish when communicating with
her and that Sparks would text her in English. She further said that Sparks had been unfair to
her, had been slow in responding to Mother’s requests or questions, and had told her she had
“already lost her children.” Mother testified that Sparks had called her a “criminal,” 5 made fun
of her, and called her crazy. Mother claimed that she always informed Sparks when she moved;
that she followed all of the instructions she was given at visitations; that she did not disrupt
Father’s visitations; and that she never interfered with Matt’s medical staff or their tests. She
testified that she only brought Wayne fast food once, at a time when she had not yet been told he
needed to improve his diet. However, she also admitted that she knew about Wayne’s liver
disease before his removal, that doctors told her Wayne’s diet had to change, and that she had
5 The evidence includes some text messages between Mother and Sparks. Those texts were in Spanish and were translated at trial by an interpreter. At one point Sparks sent Mother a series of texts that were translated as saying: “Criminal? You are the one that is here in this country illegally, and that is criminal”; “Criminal is also when one uses an ID from someone else to obtain work”; and “criminal is when one person goes to the girlfriend of the ex-partner to beat her up.” Sparks testified that she had not called Mother a “criminal” in those texts, asserting:
She mentioned something about she’s not a criminal, so I . . . did it like a little mini lesson, and I explained—I just gave her . . . examples of criminal type of activity. . . . I mentioned on there that, you know, “This is criminal.” And so however she felt like she needed to take—she took that, like, you know, it’s how she takes things, but that’s what was mentioned, you know, in the text. I just schooled her on, you know, what the word “criminal” means.
15 changed his diet before his removal from her care. Mother testified that she believed Father
frequently drank to excess and that he had used cocaine more than once—she based that belief
on having seen Father on several occasions with a cousin she believed sold drugs. Mother said
that Father was lying in claiming that she had assaulted him and that Leslie had started the fight
with Mother. She denied that the police had ever been called to her house because of a suspected
overdose or that she had ever tried to kill herself, and she testified that she had been diagnosed
with “[r]egular bipolar,” not with depression or “severe bipolar.”
Yolanda Moreno, Father’s therapist, testified that she worked with Father for
sixteen or seventeen sessions and that he was successfully released from therapy after testing
negative for drugs. She said he was engaged throughout their sessions and was working to
process the information he was given. She also testified that she believed he understood the
children’s medical needs and the negative effect domestic violence can have on children.
Lisa Peterson testified that she discharged Mother after five sessions because she
believed that Mother “was telling me what she wanted to hear” and “didn’t feel like she could be
honest with me because she was so afraid of losing the kids.” Peterson said, “I didn’t feel like
we were getting anywhere in our sessions, so that’s why I asked to close the case.” However,
Peterson also explained that she does not speak Spanish, that she worked with Mother through a
translator, and that Mother might have been more effective with a Spanish-speaking therapist
because “they would get more work done” during their sessions. Katherine Brinkmann, on the
other hand, testified that she had seen Mother over the last nine months before trial and that with
each visit, Mother’s behavior was calmer, “she was very stable, she was always very logical, and
was showing to me that she was able to maintain her medication and be responsible with her
appointments.” Although Brinkmann believed Mother was currently stable, she agreed that if
16 someone had an eight-year history similar to Mother’s (multiple psychiatric hospitalizations, six
years of Department involvement, unstable living situations, and multiple domestic partners),
“the stability is threatened.”
DISCUSSION
In her first issue, Mother asserts that the evidence is legally insufficient to support
the trial court’s order of termination. Mother notes that it took three months to set up therapy
appointments with an interpreter and argues that Sparks was “openly hostile” and called Mother
“a criminal because of her status as an immigrant in this country”; that “[i]t’s not believable that
anyone would be able to satisfy a caseworker with those kinds of attitudes, no matter what the
parent in question did”; and that “it might be almost impossible to cooperate with the
Department.” She concludes by stating that “the evidence that she could actually do services is
legally insufficient” and, therefore, that “the legal basis for termination is insufficient.”
Mother’s argument related to the statutory grounds for termination focuses on
section 161.001(d), which provides that termination may not be ordered for a parent’s failure to
complete court-ordered services if the parent shows that she was unable to comply with specific
provisions of the order, that she made a good faith effort to comply with the order, and that her
failure to comply is not attributable to any fault on her part. See Tex. Fam. Code § 161.001(d).
However, the trial court found termination was justified on grounds other than Mother’s failure
to comply with the court’s orders—it also determined that Mother had placed or knowingly
allowed the children to remain in surroundings that endangered their well-being, that she
engaged in conduct or knowingly placed the children with someone who engaged in conduct that
endangered their well-being, and that she suffered from a mental illness or mental deficiency that
17 rendered her unable to properly care for the children. See id. §§ 161.001(b)(1)(D), (E), .003.
The only portion of Mother’s argument that notes the other grounds for termination states:
In this case, it strains credibility to argue that the trial court found that the Appellant could have reasonably completed her services, thus ameliorating the (D) and (E) grounds, negating the (O) ground, and somehow getting around the Department’s insistence that the Appellant was mentally defective under § 161.003.
Mother’s brief does not explain how the evidence cannot support the court’s
conclusions that she engaged in conduct that endangered the children or placed them with others
who endangered their well-being, that she placed them in surroundings that endangered their
well-being, or that her mental illness renders her unable to provide for her children’s needs. See
Tex. R. App. P. 38.1(i). Nor does our review of the record support such a determination. We
overrule Mother’s first issue on appeal. See In re J.A.M.R., 303 S.W.3d 422, 425-26
(Tex. App.—Dallas 2010, no pet.); In re C.L., No. 04-03-00638-CV, 2004 WL 86136, at *3
(Tex. App.—San Antonio Jan. 21, 2004, no pet.) (mem. op.); In re B.M.R., 84 S.W.3d 814, 816
(Tex. App.—Houston [1st Dist.] 2002, no pet.).
In her third issue, Mother asserts that the termination of her parental rights
violated her fundamental due process rights because she did not receive adequate language
translation during the underlying proceeding. She complains that she “did not have adequate
translation through the entire case,” that she had trouble understanding her caseworker, that “it’s
not clear she had the help she needed in the Family Based Safety Services case, because the
supervisor thought she spoke English,” and that there “is no evidence that was ever remedied.”
However, Mother’s assertion that it is “not clear” whether she was adequately served by the
Family Based Safety Services case cannot suffice to establish a due process violation. See, e.g.,
18 Castro v. Ayala, 511 S.W.3d 42, 46-47 (Tex. App.—El Paso 2014, no pet.) (person asserting due
process violation has burden to establish violation, and whether person sufficiently understands
proceedings is generally fact question).
Further, although Mother asserted at trial that she had difficulty understanding
Sparks, Sparks testified that she was fluent in Spanish, that she did not believe that Mother had
failed to understand her, and that Father did not have difficulty understanding Sparks’s Spanish.
In the exhibits introduced at trial, Mother did not express any trouble understanding Sparks’s
Spanish texts. Whether Mother sufficiently understood throughout the underlying proceeding
was therefore a fact issue for the trial court to consider. See In re L.M.I., 117 S.W.3d 1, 4 (Tex.
App.—Houston [14th Dist.] 2001), aff’d, 119 S.W.3d 707 (Tex. 2003) (whether father
sufficiently understood affidavit of relinquishment was fact issue and it was thus within trial
court’s discretion to determine whether absence of interpreter violated due process rights).
Finally, other than soliciting conflicting evidence about her comprehension of
English, Mother did not raise due process complaints in the trial court. See In re L.M.I., 119
S.W.3d at 710-11 (father did not raise issue related to lack of translation services before trial
court); In re F.E.N., 542 S.W.3d 752, 768 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(father waived complaints related to lack of translator during some preliminary proceedings or
“subpar” translator at termination hearing because he did not object to Department’s failure to
provide translator during its interactions, lack of translated family service plan, or competence of
translator provided at trial); see also In re B.L.D., 113 S.W.3d 340, 352-54 (Tex. 2003) (general
rule requiring trial-court preservation of due process complaints applies in parental termination
cases). We overrule Mother’s third issue on appeal.
19 Mother’s fourth issue argues that because the Department did not make
reasonable efforts to provide services, termination was inappropriate. However, this issue goes
to whether Mother could prove that her failure to complete services was not attributable to her
under section 161.001(d) of the family code, which allows a parent to show she should be
excused from having complied with court-ordered services and therefore to avoid termination
under section 161.001(b)(1)(O) only. See Tex. Fam. Code § 161.001(d). We have already noted
that the trial court found termination was proper under three other statutory grounds separate
from section 161.001(b)(1)(O). We therefore need not consider Mother’s fourth issue.
Lastly, we turn to whether the evidence is insufficient to support a conclusion that
termination is in the children’s best interest, an argument raised by both parents. 6
We review a trial court’s best-interest determination in light of the considerations
set out in Holley v. Adams, taking into account the children’s wishes, their emotional and
physical needs now and in the future, present and future emotional or physical danger posed to
the children, the parenting skills of those seeking custody, any programs available to assist those
seeking custody to promote the children’s best interest, plans for the children’s future, the
stability of the home or proposed placement, conduct by the parent that might show that the
parent-child relationship is inappropriate, and any excuses for the parent’s conduct. 544 S.W.2d
367, 371-72 (Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved,
and a lack of evidence about some of the factors does not “preclude a factfinder from reasonably
forming a strong conviction or belief that termination is in the child’s best interest, particularly if
the evidence were undisputed that the parental relationship endangered the safety of the child.”
6 Mother asserts that the evidence is factually insufficient, while Father asserts that it is both legally and factually insufficient. 20 In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The children’s need for permanence is the paramount
consideration when determining a child’s present and future physical and emotional needs. L.R.
v. Texas Dep’t of Family & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1
(Tex. App.—Austin June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 533 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). A parent’s rights may not be terminated merely
because the children might be better off living elsewhere, but the factfinder may consider
whether termination and adoption versus an impermanent foster-care arrangement would better
serve the children’s best interest. See L.R., 2018 WL 3059959, at *1.
Little testimony was presented about the children’s wishes, other than testimony
that the children have bonded with their foster parents and are thriving in their care and that
Wayne is very excited about the prospect of being adopted by his foster parents, the same foster
family with which he and Judy were placed in a past Department intervention. See M.R. v. Texas
Dep’t of Family & Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3 (Tex.
App.—Austin Feb. 23, 2018, no pet.) (mem. op.) (factfinder may consider that child has bonded
with current placement, is well cared for by them, and has spent minimal time with parent).
Three of the four children have medical needs, Matt’s being the most serious. Matt is in a
medically trained foster home, and Wayne and Judy are both placed with foster parents who have
addressed and continue to address their medical needs, adjusting Wayne’s diet and ensuring that
Judy has ADHD medication and appropriate support for her intellectual functioning. Sparks and
Piedfort both testified positively about the foster parents’ parenting abilities, Matt’s foster
parents have arranged for home health care to assist them, 7 and the foster parents are bringing the
7 We note that the in-home nursing would be available to Mother or Father if they were to regain care. 21 older two children to therapy to work through past trauma. The children’s current foster
placements are all stable and “long-term” and will likely become permanent.
The Department had been involved with the family on a nearly “nonstop” basis
since 2012. There was testimony that Father had largely abdicated his involvement with the
children’s care and needs—while he was with Mother, he said that he worked and allowed
Mother to handle everything related to the children, and since they split up, he had stayed away
from the children because of his difficulty getting along with Mother. However, his lack of
involvement meant that he was unaware of Mother’s repeated hospitalizations of Matt, which
medical staff believed were not always necessary. Father admitted that he had mistakenly
allowed Mother to be the sole caretaker and testified that he had learned from that mistake, but
that asserted change in behavior, along with his cooperation with the court-ordered services,
occurred years after the Department first had to become involved with the family.
Witnesses testified that Mother was confrontational, uncooperative, and difficult
to work with, and although Mother asserted that such testimony was false, we will not second-
guess the trial court’s resolution of credibility and evidentiary conflicts. See A.B., 437 S.W.3d at
503. Mother also denied suicidal or homicidal ideations, but medical records and the
Department’s witnesses reflected otherwise. There was evidence that Mother was not always
reliable about taking her medication, although her therapist stated that Mother’s management of
her medical conditions had improved in the months leading up to trial. Department witnesses
and Matt’s medical records indicate that Mother’s conduct related to Matt’s medical needs
sometimes was inappropriate—losing or throwing away his feeding apparatus; interfering with
medical tests that sought to confirm medical problems reported by Mother; concealing evidence
that Matt was urinating or having bowel movements; and repeated emergency room visits when
22 medical staff seemed to believe at least some of those visits were unnecessary and resulted in
Matt being subjected to unnecessary medical interventions. See LaRocca v. Texas Dep’t of
Family & Protective Servs., No. 03-10-00103-CV, 2010 WL 4367065, at *8-9 (Tex. App.—
Austin Nov. 4, 2010, no pet.) (mem. op.) (in suit for termination of parental rights to medically
fragile child, court of appeals discussed evidence of child’s needs and which proposed placement
would best meet those needs).
Father denied ongoing cocaine use, but the Department produced evidence from
which the trial court could have concluded otherwise. Further, Mother testified that he had
committed domestic violence, an allegation Father denied. More importantly, Father admitted
that he had largely removed himself from issues related to the children, allowing Mother to be
the primary decision-maker. Even after they broke up, Father continued to allow Mother to
control the children’s care because he found it difficult to deal with Mother. Father was removed
enough from the children’s day-to-day lives that he was unaware of Matt’s repeated
hospitalizations. Department witnesses expressed concerns about whether Father would be able
to manage the children’s various health issues and whether he could be sufficiently protective of
their needs.
It is clear that both parents love their children and that the children love them in
return. However, as noted above, the children’s need for permanence is of primary
consideration, a fact testified to by Piedmont in explaining why she was recommending
termination. See L.R., 2018 WL 3059959, at *1; D.R.A., 374 S.W.3d at 533. On this record, we
23 cannot conclude that the evidence is legally or factually insufficient to support the trial court’s
best-interest determination. We overrule Mother’s second issue 8 and Father’s sole issue.
CONCLUSION
We have overruled Mother’s and Father’s issues on appeal. We affirm the trial
court’s order of termination.
__________________________________________ Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Kelly and Smith
Affirmed
Filed: July 10, 2019
8 Mother’s argument as to best interest boils down to this: “because the mother had difficulty completing services, because of the Department’s outward hostility towards her, the facts do not indicate that there was clear and convincing evidence that it was in the children’s best interest to terminate their mother’s parental rights.” We have addressed the merits of the issue despite the lack of briefing. 24