in the Interest of J.D. and K.O., Children

• Court: Court of Appeals of Texas
• Decided: August 2, 2012
• Docket: 02-11-00328-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00328-CV

IN THE INTEREST OF J.D. AND K.O., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

I. BRIEF BACKGROUND AND INTRODUCTION

After hearing testimony about the physical abuse suffered by three-year-

old J.D., allegedly at the hands of Appellant Mother’s boyfriend C.O., and after

hearing testimony that Mother had refused to acknowledge C.O.’s role in the

abuse and to extricate herself from him, the trial court terminated Mother’s

1 See Tex. R. App. P. 47.4. parental rights to both her son J.D. and to her daughter K.O.2 Mother now

appeals the judgment terminating her parental rights to her two children, arguing

that the family code’s dismissal deadlines in termination cases are

unconstitutional,3 that the trial court erred by denying her motion to extend the

dismissal deadline, that Texas Family Code section 263.405(i) violates the

separation of powers provision of the Texas constitution, that section 263.405(i)

as applied to Mother violates the Due Process Clause of the United States

Constitution, and that the evidence is legally and factually insufficient to support

the termination of her parental rights. We will affirm.

II. THIRD ISSUE

In her statement of points on appeal, Mother challenged only the legal and

factual sufficiency of the evidence to support the termination of her parental

rights and argued that subsections (b), (d), (g), and (i) of section 263.405 violate

the separation of powers doctrine. Mother, recognizing that her first two issues

(regarding the section 263.401 dismissal deadlines) were not raised in her

statement of points, argues in her third issue that Texas Family Code section

2 The reporter’s record spells K.O.’s first name with a “C.” In this opinion, we use the spelling found in the final judgment, which is also reflected in the style of this appeal. 3 On January 17, 2012, notice was given to the Office of the Attorney General (OAG) in accordance with Texas Government Code section 402.010(b). Tex. Gov’t Code Ann. § 402.010(b) (West Supp. 2011). A copy of Mother’s brief was also sent to the OAG. No response was filed by the OAG.

2 263.405(i) is not a bar to her first two complaints because section 263.405(i)

violates the separation of powers provision of the Texas constitution.

Former section 263.405(i) of the family code required an appellant to

present to the trial court any issue that she intended to appeal in a statement of

points. See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex.

Gen. Laws 332, 332 (“The appellate court may not consider any issue that was

not specifically presented to the trial court in a timely filed statement of points on

which the party intends to appeal or in a statement combined with a motion for

new trial.”), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5,

8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former

section 263.405 remains in effect for final orders rendered before September 1,

2011).4 However, following our recent decision in In re A.J.M., No. 02-11-00137-

CV, 2012 WL 2877457, at *1 (Tex. App.—Fort Worth July 16, 2012, no pet. h.)

(op. on reh’g) (en banc), we sustain Mother’s third issue. See generally Ross v.

Union Carbide Corp., 296 S.W.3d 206, 221 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (Frost, J., concurring on en banc review) (stating that “‘absent

(1) a decision from a higher court or this court sitting en banc that is on point and

contrary to the prior panel decision or (2) an intervening and material change in

4 The final order of termination was signed on August 2, 2011. Because the order was signed before September 1, 2011, former section 263.405(i) controls this case. See id. Due to the repeal of former section 263.405(i), our holding in this appeal is limited to cases in which a final termination order was signed before September 1, 2011, and in which an appellate court opinion has not been handed down.

3 the statutory law, this court is bound by the prior holding of another panel of this

court’”). We therefore review each of Mother’s issues.

III. MOTHER FAILED TO PRESERVE HER SEPARATION OF POWERS ARGUMENT REGARDING SECTION 263.401’S DISMISSAL DEADLINES

In her first issue, Mother argues that the artificial deadlines of section

263.401 violate the separation of powers provision of the Texas constitution and

are void. To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). If a party fails to do this, error is not preserved, and the complaint is

waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g); see

also In re B.L.D., 113 S.W.3d 340, 354–55 (Tex. 2003) (holding that court of

appeals must not retreat from error-preservation standards to review

unpreserved error in parental rights termination cases), cert. denied sub nom.

Dossey v. Tex. Dep’t of Protective & Regulatory Servs., 541 U.S. 945 (2004); In

re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—Fort Worth 1996, no writ) (holding

that even constitutional arguments are waived if not raised in the trial court).

Because Mother was required to raise this constitutional challenge in the trial

court and did not, she waived her right to assert it on appeal. See In re D.W.,

249 S.W.3d 625, 631 (Tex. App.—Fort Worth 2008), pet. denied, 260 S.W.3d

462 (Tex. 2008) (holding that mother’s complaint, challenging section 263.401’s

4 dismissal deadline as violative of the separation of powers clause of the Texas

constitution, was not the type of challenge of facial unconstitutionality of a statute

that could be asserted for the first time on appeal); In re K.A.S., 131 S.W.3d 215,

231 (Tex. App.—Fort Worth 2004, pet. denied) (holding that because

constitutional attacks on section 263.401 were not raised in trial court, parent had

waived right to assert them on appeal); see also In re Doe 2, 19 S.W.3d 278, 284

(Tex. 2000) (holding that trial court lacked authority to consider separation of

powers issue that was not properly presented to trial court). But see Tex. Dep’t

of Family & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 161 (Tex.

App.—Houston [1st Dist.] 2008, no pet.) (stating that party could raise

constitutional challenge to facial validity of statute for first time on appeal and

holding that section 263.401 does not violate separation of powers clause in

Texas constitution); In re L.L., 65 S.W.3d 194, 196–97 (Tex. App.—Amarillo

2001, pet. dism’d) (holding that section 263.401 does not violate separation of

powers clause in Texas constitution). We overrule Mother’s first issue.

IV. TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING MOTION FOR EXTENSION

Before the termination trial commenced, Mother asked for an extension,

stating that she had completed her service plan, had achieved independent living

from C.O., and needed “some time to demonstrate that [she] can maintain a safe

and stable home” so that the children could be returned. The ad litem

responded, “I’m adamantly opposed to that motion. [Mother] has had a year to

5 move out of the apartment from [C.O.] and decided to move out last week, if she

even has moved out. There is no . . . extraordinary circumstance that would say

that we need to extend this case.” The Department concurred with the ad litem,

requested that the motion for extension be denied, and reminded the court that

the dismissal date was that day. The attorney for C.O. stated that his client was

in favor of granting the extension because Mother and C.O. had been separated

for a month. The intervenors, Mr. and Mrs. W., who were maternal great-

grandparents of the children, did not object to the motion for extension. After

hearing the arguments of both sides, the trial court denied Mother’s request.

In her second issue, Mother argues that assuming that the statutory

dismissal deadlines do not violate the separation of powers provision of the

Texas constitution, the trial court erred by denying her motion to extend the

dismissal deadline.

A trial court must dismiss a suit affecting the parent-child relationship if it

has not rendered a final order or granted an extension on the first Monday after

the first anniversary of the date the court rendered a temporary order appointing

the Department as temporary managing conservator. Tex. Fam. Code Ann.

§ 263.401(a) (West 2008). The trial court may grant an extension of up to 180

days if it finds that “extraordinary circumstances necessitate the child remaining

in the temporary managing conservatorship of the department and that

continuing the appointment of the department as temporary managing

conservator is in the best interest of the child.” Id. § 263.401(b). Because an

6 extension of the dismissal date is similar to a continuance and because section

263.401(b) does not specify the appellate standard of review, we apply the abuse

of discretion standard. In re T.T.F., 331 S.W.3d 461, 476 (Tex. App.—Fort Worth

2010, no pet.); D.W., 249 S.W.3d at 647.

Here, Mother argues in her brief that she had completed her services and

had moved away from C.O. and that “these circumstances constituted

extraordinary circumstances that necessitated the children[’s] remaining in

CPS’[s] temporary managing conservatorship.” [Emphasis added.] Mother does

not explain how allegedly completing her services and how allegedly moving

away from C.O. constitute extraordinary circumstances, nor does she cite to any

case law showing that any other court has found this type of circumstances to

constitute extraordinary circumstances. Given Mother’s delay in waiting a year to

move away from C.O., we cannot say that the trial court abused its discretion by

denying an extension of the statutory dismissal date so that Mother could have

more time to demonstrate that she had disassociated from her child’s abuser.

See D.W., 249 S.W.3d at 648 (holding that because mother presented no

evidence when she presented her motion, she cannot show that the trial court

abused its discretion by denying her motion to extend the dismissal deadline);

Shaw v. Tex. 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.)

(holding that mother did not show that needing more time after failing to make

7 progress on service plan for eight months amounted to extraordinary

circumstances). We overrule Mother’s second issue.

V. MOTHER’S DUE PROCESS CHALLENGE IS MOOT

In her fourth issue, Mother argues that section 263.405(i) as applied to her

violates the Due Process Clause of the United States Constitution. Because we

have sustained Mother’s third issue challenging section 263.405(i) on separation

of powers grounds and have addressed all of the issues that Mother has properly

preserved for appeal, including those that were not raised in her statement of

points, Mother has received all the process that she is due. We therefore

overrule Mother’s fourth issue as moot.

VI. EVIDENCE IS SUFFICIENT TO SUPPORT BEST INTEREST FINDING

In her fifth issue, Mother argues that the evidence is legally and factually

insufficient to support the termination of her parental rights. After setting forth the

law for terminating parental rights under section 161.001(1)(D) and (E), Mother

then narrows her issue as follows:

In this case there are two primary issues for the Court to consider:

1) Was the evidence factually and legally sufficient to find that it was in the children’s best interest not to return to [Mother]?

2) Was the evidence factually and legally sufficient to find that it was in the children’s best interest to terminate all familial connections?

8 Mother’s brief, however, does not mention the Holley best interest factors

or the section 263.307(b) best interest factors and contains no argument

explaining how the evidence is legally or factually insufficient to support a best

interest finding under the Holley best interest factors or the section 263.307(b)

best interest factors. See Tex. Fam. Code Ann. § 263.307(b) (West 2008);

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Because a parent’s

rights to “the companionship, care, custody, and management” of 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), we nonetheless proceed to analyze the best

interest arguments raised by Mother. We begin by reviewing the evidence from

the trial.

A. The Evidence at Trial5

1. History of Abuse

J.D. was born May 1, 2007. Mother and J.D. lived with Mr. and Mrs. W.,

who were J.D.’s great-grandparents, off and on until Mother started dating C.O.

After Mother and J.D. moved in with C.O., J.D. frequently spent the night at his

great-grandparents’ house. During that time, Mrs. W. said that J.D. came in the

front door at her home and said, “[C.O.] hurts me, mamaw,” and then he showed

5 The record, totaling approximately 500 pages, reveals that the termination trial was held on three dates: May 2, 2011; June 13, 2011; and June 16, 2011. Due to the six-week gap in the dates, the date the testimony was given will be provided when necessary to provide clarification.

9 her bruises. If J.D. accidentally wet his pants while at her home, he would say,

“[Y]ou’re not going to hurt me,” and “Don’t hurt me.” J.D. also asked if Mrs. W.

was going to hurt him when she put him in the bathtub. Mrs. W. thought that

J.D.’s comments were odd.

Mrs. W. said that around July 2009, right after Mother got pregnant with

K.O., Mrs. W. saw a black eye on J.D. and asked what had happened; she was

told that he had run into a table. Several weeks passed, and then J.D. came

over with another black eye. J.D. said, “[C.O.] hurts me.” Mrs. W. called Mother,

and she said that J.D. had run into the door at the laundromat. Mrs. W. did not

think that was a plausible explanation in light of what J.D. had said.

Mrs. W. testified that two weeks prior to K.O.’s birth,6 Mother arrived at her

baby shower with two black eyes. Mother said that J.D. had kicked her. Mrs. W.

noticed that Mother had bruises on her chest. Mrs. W. had previously seen

bruises on Mother’s legs and arms, and Mother said that she had run into a door

or had bumped into a chair. Mrs. W. believed instead that Mother was being

beaten by C.O.

When Mrs. W. kept J.D. for a week when K.O. was born, J.D. did not have

any marks other than a fading bruise on his knee. However, when Mrs. W.

picked up J.D. from Mother approximately a month later on Easter (April 4,

2010), the whole side of his face was black; Mrs. W. rated the injury to J.D.’s face

6 K.O. was born on March 8, 2010.

10 on Easter as a seven or eight. J.D. said that one of C.O.’s friends had hit him,

but Mother told Mrs. W. that J.D. was clumsy and had fallen out of the closet.

From April 4, 2010, until April 26, 2010, Mother and C.O. stopped allowing

Mrs. W. to see J.D. as frequently.7 Mrs. W. was told that J.D. was fishing with

C.O.8

On April 27, when Mrs. W. and Mrs. S., Mother’s mother, arrived at

Mother’s house, C.O. had J.D. in the car and was trying to leave with him

because he knew that Mrs. W. and Mrs. S. were coming. The car stalled, and

Mrs. W. saw J.D.’s face. She then went and shook her finger in C.O.’s face, told

him that she was tired of this, uttered a cuss word, and said that she was going

to do something. C.O. said nothing. Ultimately, C.O. removed J.D. from the car,

and Mother and C.O. allowed Mrs. W. and Mrs. S. to take J.D. with them. Mrs.

W. said that she picked up J.D. after C.O. removed him from his car seat and

that he was walking stiff-legged. Mrs. W. said that J.D. “looked so horrible, I

couldn’t stand it.” J.D.’s lip was swollen, his right ear was all black, he “had

skinned places up his head,” he had bruises on his chest, and he had bruises on

his arms and back. Mrs. W. testified that J.D.’s injuries were all over his body

and that when they touched him, “he would holler ‘oh, oh[.]” Mrs. W. thought that

7 Mother said that she was not getting along with Mr. and Mrs. W. and that was why they had not seen J.D. in two weeks. 8 Mrs. W. believed that J.D. was fishing because she had taken him fishing, and he loved it.

11 he had broken ribs. Mrs. W. rated the injuries as past a ten. Mrs. W. said, “They

told us it was rug burn,” but she did not believe that explanation. Mrs. W. took

pictures of J.D. because she believed that he had been beaten.

When they arrived at Mr. and Mrs. S.’s house, Mr. S. started screaming

when he saw J.D. Mrs. W. left and returned later that evening with her husband

so that he could see J.D.’s injuries; Mr. W. was upset by them. J.D. spent the

night with Mr. and Mrs. S.

Mrs. W. stayed up all night, and the next morning on April 28, she went to

the police station in Sansom Park, where she lived. She inquired about how to

report child abuse and was told that it would need to be reported in Fort Worth if

it had taken place there. The police gave her CPS’s phone number, and she

went home and called them. She asked the CPS worker whether she should

take J.D. to the hospital, and the CPS worker told her that she could not tell her

what to do.

2. The Emergency Room Visit

Mrs. W. decided to take J.D. to the hospital, so she drove to Mr. and Mrs.

S.’s home and picked up Mrs. S. and J.D. and went to Cook Children’s Medical

12 Center at 8 a.m.9 The nursing notes state that “upon entering room pt [patient]

reports ‘I hurt’ [and] when asked who hurt him he states ‘kiss[.]’”10

Dr. Jayme Coffman, the medical director of the CARE Team 11 at Cook’s,

testified that J.D. had arrived at the emergency room with numerous bruises and

abrasions over his whole body, including in his mouth; abdominal tenderness;

elevated liver enzymes; and “a compression fracture of his T-6 vertebral body.”

Because the photographs that were admitted into evidence did not depict

the injuries as severely as they had appeared first-hand, Dr. Coffman described

J.D.’s injuries: a large, blue-gray bruise on his right cheek; a smaller, one-

centimeter bruise closer to the nose; two linear scabbed abrasions on his right

cheek; a one-centimeter green bruise on his left cheek; an “abraded” upper lip; a

torn frenulum (the little piece of skin that connects the upper lip to the gum);

cracked and bleeding lips; bruising on the right side of his tongue and on the

anterior tip of his tongue; abrasions on both sides of his soft palate; a three-by-

two-centimeter red bruise with several linear abrasions on his chin; a one-

centimeter bruise on his jaw line; a one-centimeter blue bruise on the bridge of

9 Mrs. W. testified that J.D. did not have any new injuries when she picked him up from Mrs. S.’s house. Mrs. W. did not know why Mother testified that J.D. had fewer injuries when he left her house than when he appeared at the hospital. 10 “Kiss” closely resembles C.O.’s first name. Mother testified that J.D. clearly pronounced C.O.’s first name and had never heard J.D. use a different pronunciation for C.O.’s first name. 11 Dr. Coffman explained that the CARE Team is the child abuse program at Cook’s.

13 his nose; small purple bruising on the inner part of his right ear; red bruising on

the part of the ear that sticks out and extending to the hairline; purple bruising on

the right side of the tip of his penis; a scabbed abrasion that was five-by-three

centimeters on his left mid-thigh; a three-by-three-centimeter abrasion on his

right lower back with four-by-four-centimeter redness adjacent to that; an

abrasion that was starting to scab that was one-by-one-and-a-half centimeters on

his lower back; a three-by-one-centimeter “over-scabbed” abrasion along his

vertebral area on his mid-back; an abrasion that was almost resolved on his right

upper back near the scapula; several one-centimeter red bruises on his right

knee; a four-centimeter, linear scabbed abrasion and two linear scars on his right

anterior thigh; multiple linear scabbed abrasions on his left lateral or side of his

ankle; several small pustules12 on his left big toe; a two-by-two-centimeter bruise

on the left lower leg on the inner aspect; scattered petechiae13 in both armpits;

multiple one-centimeter bruises varying in color on the anterior of the chest; red

petechiae were on top of a three-to-four-centimeter blue bruise on his left chest;

four one-by-one-centimeter red bruises were on his left lateral forearm; two-by-

three-centimeter red bruising with swelling or edema of his right elbow; and

numerous scattered bruises on his legs.

12 Dr. Coffman testified that these small pustules could “just be an infectious process, not necessarily injury.” 13 Petechiae, which are little red dots, are little broken blood vessels.

14 Dr. Coffman testified that there was no way to identify the size of the hand

that had caused the bruises and that she could not precisely date bruises

because so many factors affect the resolution, especially when there is bruising

on top of bruising. Dr. Coffman said that the bruises that were blue and purple

would have been caused in the “last few days,” but that was as precise as she

could be. She said that the bruising could have occurred the day before, the

week before, or at both times. And the abrasions that had scabbed would have

taken a few days to reach that level. Dr. Coffman concluded that the bruises

appeared to be at various ages but were less than a week old; all of the bruises

were gone when the doctor repeated a skeletal exam a couple of weeks later.

Dr. Coffman explained how J.D.’s injuries could have occurred. She said

that a torn frenulum in a child J.D.’s age could be caused by a hit in the mouth or

by something being jammed into his mouth; that a bruise on the tip of the penis is

usually caused by pinching; and that the petechiae can be caused if a shirt

bunches up and squeezes the skin or by someone squeezing the person under

the armpits.

Dr. Coffman testified that J.D.’s elevated liver enzymes could have been

the result of blunt trauma or certain viral illnesses. But Dr. Coffman testified that

J.D.’s abdominal CT did not reveal any liver injury, and there was no indication of

any other kind of illness.

Dr. Coffman explained that J.D.’s symmetric “compression fracture of the

T-6 vertebral body” meant that the round part of the backbone “was squished

15 down, so it was flattened somewhat.” Dr. Coffman said that such an injury

requires a force going up the backbone, like slamming J.D.’s bottom down on

something hard such that forces are transmitted up his back. Dr. Coffman said

that the compression fracture would have caused J.D. to be fussy because it

would have caused him pain. Dr. Coffman testified that an injury of this nature

cannot be caused accidentally.

Dr. Coffman said that the injuries on J.D.’s back could have been caused

by carpet burns or any number of things; there was no pattern to the injuries. Dr.

Coffman said that a fall from a chair would not have caused all of J.D.’s injuries

but could have caused some.

Dr. Coffman said that in the days preceding the trip to the emergency

room, the bruising on J.D. would have been noticeable to a layperson. In Dr.

Coffman’s opinion, a reasonable person would have noted that J.D. needed

medical treatment. Dr. Coffman had no doubt that someone or multiple people

had beaten J.D., who was just a couple days shy of his third birthday when he

was seen in the emergency room. Dr. Coffman believed that J.D. had suffered

Battered Child Syndrome, meaning that he had been beaten over time. Dr.

Coffman testified that whoever had knowledge that this was going on did not

protect this child, and therefore, it was not safe to return the child to his

caregivers.

16 3. CPS Investigation

Kriste Moron, an investigator with Child Protective Services (CPS), testified

that she was assigned the case involving J.D. and K.O. after CPS had received

multiple referrals stating that J.D. had numerous injuries; there were concerns

that he was being abused and that there was domestic violence in the home.

When Moron arrived at Cook’s, she tried to speak with J.D. while he was being

treated for his injuries, but he could not communicate clearly enough to be

interviewed. Moron interviewed Mrs. S. and Mrs. W., who gave information

consistent with the facts set forth above.

Moron met with Mother and C.O., who both initially denied that J.D. had

any injuries prior to being picked up by his grandparents. Later, Mother told

Moron that J.D. had fallen from the table and had hit his face on the table and

had busted his lip. Mother also said that J.D. had chapped lips. Mother said J.D.

had a cut on his face from falling while retrieving a kite out of the closet. At first,

Mother said that she saw the incident but later said that she was only told about

the incident by C.O. Mother said that the injuries on J.D.’s back were caused

when he received carpet burns while he was playing with C.O. Mother did not

know what had caused the injuries to J.D.’s chest, but she said that C.O. had

previously left bruises on J.D.’s chest when he had played too rough with him

and had punched him in the chest. Mother said that the current bruises on J.D.’s

chest were not the same bruises that she had observed after C.O. had punched

him in the chest while playing with him. Mother had no explanation for any of

17 J.D.’s other injuries. In Moron’s opinion, Mother did not seem to be too

concerned about J.D.’s injuries and did not seem to be protective of J.D.

Moron asked Mother and C.O. about domestic violence, and Mother said

that there was one incident a month or two prior to her giving birth to K.O. during

which C.O. had punched her in the face, causing a bruise on her face. C.O. said

that he had never been involved with domestic violence.14

C.O. told Moron that he saw J.D. fall from the table and hit his forehead on

the table. C.O. also talked about J.D.’s falling while trying to get a kite but said

that he did not actually see J.D. fall. C.O. said that Mother had told him that he

played too rough with J.D., but C.O. denied having caused any of J.D.’s injuries

or knowing how they were caused.

Neither Mother nor C.O. had an explanation for how J.D.’s compression

fracture had occurred. Both Mother and C.O. reported that J.D. was clumsy and

that he ran into walls and fell down a lot. Both denied that J.D. had been crying

or fussy or had acted hurt before he was taken to Cook’s.

Moron testified that because Dr. Coffman could not date J.D.’s injuries,

Moron decided not to place the children15 with the grandparents or great-

14 C.O., however, reported to Moron that he had previously been involved with other types of criminal activity; he had been involved with a gang, had been shot during a gang shooting, and had previously used marijuana but had stopped. 15 K.O. was removed because there was a risk of physical abuse, but there was no evidence of her having been abused.

18 grandparents in case J.D. had sustained his injuries while he was with them.

During the interviews, Moron did not know who had injured J.D., but she was

concerned about the inconsistencies in the explanations that she had received

from Mother and C.O. regarding J.D.’s injuries. Moron ultimately concluded that

Mother and/or C.O. had caused J.D.’s injuries because they were J.D.’s only

caregivers, but Moron could not establish that any specific injury on J.D. was

caused by Mother.

4. Mother’s Service Plan

Tyra Sasita, the conservatorship worker assigned to the case in late April

or early May 2010, testified that she had developed service plans for Mother and

C.O. Sasita testified that Mother’s service plan required her to complete random

drug testing, which she did;16 to attend her weekly visitation, which she did;17 to

participate in a domestic violence group, which she did; to undergo a drug and

alcohol assessment, which she completed; to participate in individual counseling,

16 Sasita gave Mother random drug tests, and she tested negative. Sasita testified that drug use was not an issue in this case. 17 Although Sasita had not had an opportunity to observe the visits, she had received notes from the case aide, and nothing had occurred during the visits that would cause Sasita to request that the visits be canceled or suspended. Sasita had received reports from the visits that Mother had brought things for the children to the visits. During the visits, however, she was unable to control J.D. He stood on chairs and called her a “poopoo-head,” and she was unable to redirect him. Sasita testified that J.D.’s aggression increased after visits.

19 which she did until she was discharged;18 to provide safe and stable housing,

including food, and employment for six consecutive months in order to achieve

reunification, which is set forth in more detail separately below; to participate in

the Shaken Baby Alliance, which she did not complete because of scheduling

problems;19 to participate in parenting classes, which she did; to complete a

psychological evaluation, which she did; to follow all of the recommendations on

her psychological evaluation, which she had not done; to cooperate with the

detective who was working her criminal case,20 which she had not done; and to

participate in anger management classes, which she did. Sasita also testified

18 Sasita explained that after receiving notes from Mother’s counseling session with the Parenting Center, Sasita did not feel that they were addressing the issues that would be helpful in this case, including the domestic violence issue, the issues of what happened to J.D., the issues with her relationship with C.O., and the issues of resolving the CPS situation. After Mother had completed twelve sessions, Sasita asked that Mother complete another round of sessions with another counselor named Norma Bartholomew. Mother attended the sessions but made “very limited” progress with Bartholomew. After going through two rounds of counseling, Mother continued to state that J.D.’s injuries were the result of his falling off a chair and clumsiness and that she believed that her mother had caused J.D.’s injuries. Mother was ultimately discharged from counseling due to “lacking insight.” Sasita testified that Mother had to be able to demonstrate that she could protect her children, and she could not do that because she would not process in counseling that C.O. could have caused J.D.’s injuries. 19 Sasita was not able to reach the instructor for the Shaken Baby class, and she did not hold Mother accountable for completing that requirement on her service plan. 20 The particular criminal case was not specified.

20 that Mother had failed to remove herself from the person that the detective said

had probably caused the injuries to J.D., but this was not part of her service plan.

Sasita testified that given the serious injuries that J.D. presented with, the

Department would not consider returning the children to Mother and C.O. if they

only completed their services; the Department wanted to know what had caused

J.D.’s injuries so that the Department could come up with a plan. Mother told

Sasita that she had not seen bruising on J.D.’s body when she bathed him.

Sasita said that it was not possible for Mother and C.O. not to know about any of

J.D.’s injuries because the medical reports noted that some of the injuries were

old.

Sasita had not learned at any point that Mother had laid hands in anger on

J.D. Mother told Sasita that C.O. did not cause J.D.’s injuries. Mother would not

entertain the idea that C.O. had caused J.D.’s injuries and would say only that

they played rough together.

Instead, Mother gave Sasita several explanations for J.D.’s injuries; she

blamed Mr. and Mrs. S. and Mr. and Mrs. W., though Mother had never made a

police report stating that any of these people had caused J.D.’s injuries. Mother

also blamed J.D.’s falling from a chair, but that explanation did not line up with

J.D.’s injuries.

5. Mother’s Housing

Sasita described Mother’s housing situation during the pendency of this

case as “very unstable.” At the time of the removal, Mother and C.O. had an

21 apartment together on Avril Court and reported that address in October 2010. In

December 2010, Mother provided an address on Isbell Road for her and C.O.

On April 29, 2011, the Friday preceding the termination trial, Mother told Sasita

that she was living on Avril Court with Debbie Thompson. When Sasita visited

Mother’s home, she noted that it would need another bedroom in order to

accommodate Mother and the children. Mother told Sasita that she had been

living on Avril Court for a month and that she had moved out from C.O. because

she wanted her children back. Sasita, however, believed that Mother was still in

a relationship with C.O. and was living with him on Isbell Road at the time of the

trial.21

6. Mother’s Testimony

a. J.D.’s Injuries

Mother testified consistently with what she had told Moron regarding the

injury to J.D.’s face from hitting the closet door while retrieving a kite and the

injury to his lip and forehead from hitting the table. Mother said that she was

present when Mrs. W. and Mrs. S. showed up to pick up J.D. Before J.D. left

with them, Mother

noticed his lip. He had on his forehead the cut on his face or a scratch, and then his ear, it only, like, in the day, it would be fine, but I guess when he was asleep at night he would pull on it and he would wake up with his ear all bruised, and then he had some

21 C.O. told Sasita that Mother had moved out a week prior to the trial at the direction of her attorney to show that she was no longer with C.O. so that she could get her children back.

22 scratches on his legs and stuff from him falling and everything, and he had a bruise underneath his eye. My son used to demonstrate how he liked to hit himself, and I would stop him from doing that, and then he had some, the carpet burn on his back from him playing, from them playing and everything, and [J.D.] didn’t like to wear a T- shirt, and then I never noticed anything else.

Mother summarized that J.D. had sustained six injuries while in her care: a

scrape on his face from falling in a closet while trying to get a kite, a little bruise

underneath his eye, carpet burns on his back from playing around, scrapes and

bruises on his knees from playing, a bruise on his back from falling on a toy, and

a busted lip from falling and hitting the table. Mother said that none of J.D.’s

injuries were of concern to her.

Mother did not know how J.D. had received a bruise on his penis. She

said that he “used to grab himself pretty hard right there.” She and Mr. and Mrs.

W. had potty-trained J.D., but he had “kind of back-slid” whenever she gave birth

to K.O. Mother did not pinch him to get him back on track.

Mother testified that she never laid hands on J.D. in anger and that she

never saw C.O. lay hands on J.D. in anger. Mother testified that she had

spanked J.D. a few times on his bottom with her hand. Mother started doing that

when he was about two and a half whenever he would not listen or wanted to do

things that he was not supposed to, like climbing on things. Mother had not seen

C.O. spank J.D. Mother had observed C.O. playing roughly with J.D. and had

told him that he had to “stop that” and to calm down. Mother admitted that she

had intervened on occasion to stop C.O. from playing too rough with J.D. Mother

23 thought that C.O. may have caused some of J.D.’s injuries when he played rough

with him. But Mother did not think that C.O. could have been the perpetrator of

any of J.D.’s nonaccidental injuries; Mother said that it had never entered her

mind that possibly C.O. could have caused J.D.’s injuries. Mother was aware

that J.D. had told a Department employee that C.O. had hurt him, and she

believed that J.D. was “replaying back to when [C.O. and J.D. were] playing . . .

rough and everything.” Mother had never seen J.D. scared of C.O., and J.D. had

never told her that C.O. had hurt him.

Mother believed that someone had severely beaten J.D., but she was not

sure who. Mother testified that the pictures she saw of J.D.’s condition while in

the hospital revealed more bruises than he had when he left her house. Mother

explained that she believed that Mrs. S. had injured J.D. because he was “just

fine” whenever he left Mother’s care; afterwards, he was taken to the hospital,

was found to have “new injuries,” including that he could not eat and that his

back was hurt. Mother said that J.D. was eating “just fine” when he left her

house, was not complaining about his back, and was cheerful and playful.

Mother believed that Mrs. S. had caused some of J.D.’s bruises, including the

ones on his arms and his penis; had caused his back injury; and had caused his

eating problems. Later in her testimony, Mother would not say that Mrs. S. had

beaten J.D.; Mother would say only that she believed that J.D. had received

some of his injuries while he was at Mrs. S.’s home.

24 Mother testified that she had allowed J.D. to leave with Mrs. S. on April 27,

2010, because she believed family could be trusted and because J.D. had

previously spent the night with Mrs. S. without incident. Mother said that C.O. did

not want J.D. to go to Mrs. S.’s house because he knew of her drug habit,22 so he

called Mother first to see if it was okay. She admitted that it was her fault for

letting J.D. go with Mrs. S.23 Mother took responsibility for J.D.’s injuries, stating,

“I’m his mom and I should have been there for him.”

b. C.O.’s Gang Affiliation

Mother said that C.O. had been in a gang before he met her. Mother said

that C.O. had told her that the scar on his head was from a gunshot that he had

received while he was in a gang. Mother had not asked C.O. what gang he was

in or when he was shot. She agreed that she did not know a whole lot about

C.O. and that she should have known more about him before she moved in with

him and had a baby (K.O.) with him. Mother said that she would like to know

more about C.O.’s past, but she did not feel like she had placed her children in

danger by not knowing his past. Mother had asked C.O. if he was still associated

with the gang, and he said he was not; Mother took him at his word.

22 Mother said that Mrs. S. had been a drug user all of Mother’s life and that Mother was raised by Mrs. W. 23 Mother said that K.O. did not go with J.D. to Mrs. S.’s house because she was “just a baby,” and so they kept her at home. C.O. had reservations—due to Mrs. S.’s drug use and drinking—about K.O.’s going to Mrs. S.’s house, so he kept her home.

25 c. Domestic Violence

At the beginning of the termination trial, Mother agreed that C.O. is her

boyfriend and that he had been her boyfriend for about two years at that time.

Mother said that she felt safe around C.O. but admitted that there was one

incident when he had hit her. Mother said that when she was seven or seven

and a half months’ pregnant, C.O. had slapped her during an argument over

finances and that it was a one-time event. Mother said that the slap did not make

her eye black or leave a mark or a bruise. Mother testified that she took a walk

after the incident and that then they came back and talked about the fight; Mother

did not call the police. Mother said that C.O. did not give her a black eye when

she was pregnant with K.O., and Mother had no concerns about C.O.’s being

physically violent.

d. C.O.’s Parenting

Mother testified that J.D. was four years old at the time of the termination

trial and that C.O. had been caring for J.D. for the two years that she had been

with C.O. J.D. liked to play with his toys, go fishing, go outside and play, and

watch television. J.D. watched wrestling and liked to wrestle with C.O. Mother

believed that her children would be safe around C.O. without supervision.

Mother testified that in her mind, C.O. was a possible placement for both of her

children. Mother had no concerns about C.O.’s parenting her two children

because she had never seen him as a bad parent. Mother, however, was

concerned about whether C.O. could take care of the children financially. Mother

26 did not know why she had initially picked her grandparents over C.O. to take care

of her children. She ultimately concluded that she would like K.O. to be with C.O.

over her grandparents.

e. Mother’s Services, Residence, and Employment

Mother testified that she had complied with all of CPS’s requests. Mother

thought that she had done “pretty good” in her individual counseling sessions

with Bartholomew but that she did not really ask much because she had already

been through counseling before. Mother was not aware that she had been

discharged from counseling because she was not making progress; Bartholomew

told her that she had been discharged because she did not need counseling any

more. Mother said that she had learned things during the parenting course and

that she would call the police if her children were ever placed in danger or injured

by C.O. Mother said that if she was given the opportunity to continue parenting

her son, she would be much more observant and protective as a result of what

she had learned in her parenting classes.

Mother testified that she had moved in with “a good friend” named Debbie

before the termination trial started because Mother had realized that she needed

“to do [her] own thing” in order to have her children returned. Mother testified

that her current address was on Avril Court South and that she had provided

Sasita with the current address on Wednesday or Thursday of the week before

the termination trial had started. Mother testified that there were two bedrooms

in the apartment and that Debbie’s three children were there on the weekends.

27 Mother did not know anything about Debbie’s background but said that she had

known her since ninth or tenth grade. Mother agreed that there would be seven

people living in a two-bedroom apartment if the trial court returned her children to

her. Mother said that C.O. would help her out financially if she was kicked out by

her roommate.

Mother testified on the first day of trial that she had worked at Sprouts

Farmers Market since January 10, 2011; that she made $8.91 an hour; and that

she worked twenty-six or twenty-eight hours per week. Approximately five weeks

later, on the second day of trial, Mother testified that she had left Sprouts

because they were not giving her enough hours. After Mother left Sprouts, she

was unemployed for two weeks; she did not know why she had left a job that

gave her at least ten hours for no job. Mother had $200 saved up when she left

Sprouts. On the second day of trial, she testified that she was working full-time

at Green Monster, a solar company. She had been working there for about a

week. Mother said that she made about $400 per week. Mother’s rent was $550

per month, but Debbie paid it; Mother helped out with the bills by paying $300.

Mother had about $100 saved up. Mother had received a tax refund of $2,360 in

January 2010, but she could not recall what she had done with the money. In

January 2011, Mother received a tax refund of $3,050 and bought a car, which

she returned in April 2011 because she could not make the payments. Mother

testified that she did not have health insurance for her children.

28 f. Mother’s Plans

At the start of the termination trial, Mother said that if her children were

returned to her, she would not continue a romantic relationship with C.O. and that

she had sat down and talked about that with him. Mother said that if she did not

get her children back, she was not sure whether she was going to continue her

relationship with C.O.; she said, “We haven’t figured that one out. Probably not.”

Mother said that she and C.O. had been talking “for a while” about having to end

their relationship so that she could keep her children. Mother admitted that her

preference was for the children to be returned to her to be cared for jointly by

Mother and C.O. On the second day of the termination trial, Mother said that she

and C.O. were no longer together and that she did not talk to C.O. at all. The last

time that she had spoken with him was when she moved out.

Mother testified that the biggest mistake that she had ever made was not

protecting her children enough. Mother believed that she had done everything

she could do to get her son back, including separating her residence from C.O.’s.

Mother asked the trial court to return her children to her and she said that she

could prevent C.O. from being around J.D. Mother said that Mr. and Mrs. W.

could watch her children while she worked.

If the children were placed with relatives, Mother agreed that she would

pay child support. Mother had indicated to Sasita that if the children were placed

with Mr. and Mrs. W., she would go get the children, despite the great-

grandparents’ efforts to protect the children. Sasita told Mother that she would

29 not have permission to take her children, and Mother agreed that was not an

option.

7. C.O.’s Testimony

C.O. was in a gang from age twelve through age eighteen or nineteen

when he was shot. C.O. testified that after he was shot in the head by a rival

gang, he had not been affiliated with any gangs.24 C.O. testified that he had not

been in trouble with the law since the injury. Prior to disassociating from the

gang, C.O. pleaded guilty to the following offenses: escape, which occurred

August 7, 2002; driving while intoxicated, which occurred August 29, 2002;

assault/bodily injury to a family member, which occurred on October 1, 2005;25

and possession of marijuana under two ounces, which occurred on November

22, 2008.26 The judgments from the four offenses were entered into evidence.

C.O. underwent a psychological evaluation and was diagnosed with

adjustment disorder with depressed mood and psychotic disorder. One of the

recommendations was that he be treated for hallucinations.

24 Sasita verified that C.O. received food stamps and disability for being shot in the head by a rival gang. 25 C.O. testified that he had assaulted his ex-girlfriend by slamming her head against the trunk of an automobile. C.O. said that he slapped his ex- girlfriend because she would not get out of his way. He said, “Really, I didn’t do nothing. I slapped her.” C.O. also testified that he had slapped Mother once because she would not move out of the way and was blocking the door. 26 C.O. pleaded the Fifth Amendment regarding when he had last used marijuana.

30 C.O. said that Mother was nurturing and was a good parent. He never saw

Mother injure J.D. C.O. pleaded the Fifth Amendment when asked whether he

had injured J.D.27

C.O. testified that J.D. had told him, “Grandma beat me,” meaning that

Mrs. W. beat him. C.O. however never saw Mr. or Mrs. W. mistreat the children

or physically abuse Mother. And C.O. never took J.D. to the doctor for injuries

that he had allegedly received at Mr. and Mrs. W.’s house.

C.O. testified that he lived on Isbell Road at the time of the termination trial

and that Mother had lived with him until two months before the June termination

trial. C.O. testified that he and Mother were not a couple and no longer spent

time together. C.O. later admitted that since the May 2 court date, Mother had

come over to his apartment on court days.

8. Support System

The intervenors were ages sixty-nine and seventy-two. When Sasita

visited Mrs. W. at her home, she showed Sasita pictures of past injuries to J.D.

and talked about how J.D. would act out the abuse that was going on in his

home. The Department ultimately decided not to place the children with the

intervenors because of their motivation to protect the children, their ability to

protect the children, their lack of a viable backup caregiver, their awareness of

27 Sasita testified that there was no ongoing criminal investigation regarding C.O. as the perpetrator of J.D.’s injuries.

31 past injuries, their ages, and their present belief that they should not have

contacted CPS.

Mrs. W. testified that she had raised Mother since she was fourteen or

fifteen and that Mother had lived with her off and on through nearly all of J.D.’s

life. Mrs. W. babysat J.D. while Mother was in school or at work. She said that

he was a handful but that she enjoyed it. Mrs. W. testified that she was willing to

give J.D. the extra attention or help that he required as a result of his behavioral

issues.

Mrs. W. said that Mrs. S. had separated from her husband during the week

of trial because he had tried to choke and kill her and that there were previous

incidents of domestic violence in Mr. and Mrs. S.’s home. Mrs. W. had talked to

Mother while the children were in care, and Mother had kept saying that Mrs. S.

had inflicted the injuries on J.D.

Mrs. W. testified that she did not take action when J.D. had the first black

eye or the second black eye because she did not know what to do; Mother kept

giving her excuses. However, in Mrs. W.’s mind, she had no doubt that C.O. had

caused J.D.’s injuries because J.D. had told people, “[C.O.] hurt me.” Mrs. W.

admitted that she wished that, instead of calling CPS, she would have taken the

children to a lake lot that she and her husband own. However, Mrs. W. agreed

that had CPS not gotten involved in the case, J.D. would more than likely still be

stuck in a home with a “stepfather” who was beating him.

32 When Mrs. W. asked Mother about the black eyes that she had received,

Mother told her to stay out of it. Mrs. W. believed that C.O. had caused Mother’s

black eyes while she was pregnant and the bruises on her chest when she

delivered, but Mrs. W. did not call the police to report that domestic violence was

occurring around J.D. Mrs. W. said that she did not know what to do and could

not prove anything.

Mrs. W. did not think that C.O. would beat K.O. because she was his

biological child, but Mrs. W. believed that C.O. would beat up J.D. It bothered

Mrs. W. that Mother had never admitted that C.O. was beating J.D. Mrs. W.

could not figure out if Mother and C.O. were still a couple; she did not trust that

they had broken off their relationship. Mrs. W. believed that Mother was

choosing C.O. over her children. Mrs. W. testified that Mother had received a lot

of chances over the year to get her life together, but she had not done so. 28 Mrs.

W. testified that as long as Mother is with C.O., the trial court should not return

the children to Mother. Mrs. W. did not want to see the children adopted; she

wanted them to come home with her and her husband.29

Mr. W. testified that he had observed injuries on J.D. He said that every

time he touched J.D. he said, “[D]on’t hurt me, don’t hurt me.” Mr. W. testified

28 However, Mrs. W. believed that some of Mother’s services may have helped her. 29 Mrs. W. admitted that she and her husband might have engaged in domestic violence when they were young. She said that she would “[m]ore than likely” call the police if he hit her again.

33 that he did not see C.O. inflict J.D.’s injuries, but he believed that C.O. had

caused them. He believed that Mother had failed to protect J.D. Mr. W. believed

that C.O. had also beaten Mother and had caused her black eyes and bruises;

Mother had told him to stay out of it. Mr. W. did not call the police because he

was not thinking back then; he was mad at C.O. He regretted not doing

something to protect J.D. Mr. W. asked the court to place the children with him

and his wife and testified that was in the children’s best interest.

The intervenors’ adult son Jeffery lived with them and testified that he had

not called the police when Mother moved in with C.O. and came back to visit with

bruises on her arms and black eyes although he believed that C.O. had hit her.

He also did not call the police when he saw J.D. with black eyes. Jeffery said

that Mother and C.O. were in a dating relationship and were living together.

9. Children’s Status

At the time of the termination trial, the children were living in a dual-

licensed foster home. Sasita said that K.O. was doing very well, was on target,

was growing, and was thriving; there were no issues or concerns with her. J.D.

was not on any medications but was receiving “a lot of therapies,” including

speech therapy, physical therapy, occupational therapy, and play therapy. Sasita

said that J.D. was delayed and thus did not have the cognitive ability of others his

age. According to Sasita, J.D. “continues to struggle with violence and violent

behaviors. He acts out behaviors, he has a real problem with women and how

he treats women, being disrespectful to them.” He acted out violently, including

34 hitting and tripping his sister. During his play therapy sessions, J.D. also acted

out the abuse that Mother had gone through and the abuse that he had endured.

Sasita said that “the current placement has definitely gotten the services, but it

has been very challenging to deal with [J.D.’s] behavioral issues.”

10. Department’s Plan

Sasita asked the trial court to terminate Mother’s parental rights to J.D. and

K.O. and stated that it was in the best interest of the children. The Department’s

plan was not for the current foster family to adopt the children; instead, the

Department planned to pursue another placement for the children.

11. CASA Volunteer’s Report

Alicia Miller, the Court-Appointed Special Advocate, was appointed on the

case in July 2010. Miller testified that the children were “doing great” in foster

care and that they were in “a very good placement.” Miller said that J.D. is a very

active little boy and is “all boy all the time.” Miller said that J.D. is not one to sit

still, likes to be moving and playing with things, and is very physical. The foster

mother had to keep an eye on J.D. at all times. Miller testified that J.D. was

making “tremendous progress” in speech and that K.O. was on-target for motor

skills and language. Miller was concerned that Mrs. W. had failed to involve law

enforcement when she saw injuries on J.D. Miller recommended that the

children be placed for adoption and testified that was in their best interest.

35 B. Standard of Review

There is 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). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The

following factors should be considered in evaluating the parent’s willingness and

ability to provide the child with a safe environment:

(1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to the child;

(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;

(5) whether the child is fearful of living in or returning to the child’s home;

(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home;

(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;

(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;

36 (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time;

(12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development;

(C) guidance and supervision consistent with the child’s safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and

(F) an understanding of the child’s needs and capabilities; and

(13) whether an adequate social support system consisting of an extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the trier of fact in a termination case may

use in determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the best interest of the child;

37 (F) the plans for the child by these individuals or by the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 371–72 (citations omitted).

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. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 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.

C. Sufficient Evidence Exists That Termination of Mother’s Parental Rights Is In Children’s Best Interest

Here, Mother argues that it was not in the children’s best interest to

terminate her parental rights because she had completed her service plan and

had moved out from C.O. These two arguments, however, do not outweigh the

Holley factors and section 263.307(b) factors, which we analyze below.

The record does not disclose the desires of the children, but it does reflect

that J.D.’s aggression increased after visits with Mother. Due to their young

ages, the emotional and physical needs of the children included the need for

38 protection from physical abuse, and J.D. needed therapy for the abuse that he

had endured and the abuse of Mother that he had witnessed. Mother had

demonstrated that she was incapable of protecting herself and J.D. and that she

had difficulty controlling and redirecting him when he misbehaved at visits.

Mother had taken advantage of the services that she was offered but reached a

stalemate in counseling when she would not consider that C.O. had abused J.D.

Mother admitted that she had failed to protect J.D., but her failure to

acknowledge the danger that C.O. and his friends posed to J.D.—even after

admitting that C.O. had left bruises on J.D. while roughhousing and that she had

repeatedly asked him to stop playing so rough with him—indicated an ongoing

danger to J.D. Mother wanted the children returned to her or to C.O. or to her

grandparents and contended that right before the termination trial started, she

had separated from C.O. and had established a residence of her own, though

CPS and Mother’s relatives did not believe that she had cut ties with C.O. CPS,

however, planned for the children to be adopted but not by the family that was

fostering the children; thus, CPS’s proposed placement was unknown at the time

of trial. Overall, the Holley factors do not weigh in favor of Mother.

The evidence also does not weigh in favor of Mother with regard to the

section 263.307(b) factors. The children were ages four and one at the time of

the termination trial. J.D. received speech therapy, physical therapy,

occupational therapy, and play therapy; he was developmentally delayed and did

not have the cognitive ability of others his age; and he struggled with violent

39 behaviors, including hitting and tripping. The record, as set forth above, reveals

that J.D. had witnessed C.O. beating Mother because he had acted it out in play

therapy. K.O. was on target, was growing, was thriving, and therefore did not

receive any therapy.

The record reveals a history of abuse directed at J.D., presumably by C.O.,

who kept J.D. while Mother worked or went to school and whom J.D. mentioned

as the perpetrator. Mrs. W. testified that after Mother moved in with C.O., J.D.

came to her house with bruises and said that C.O. had hurt him. This is some

evidence that J.D. could be fearful of returning to the home, though Mother

testified that J.D. had never acted scared of C.O. Mrs. W. also testified that J.D.

came over with a black eye on two occasions, that he came over with the whole

side of his face black on one occasion, and that he appeared with numerous

injuries on April 27, 2010. The page-long list of injuries set forth above, detailing

J.D.’s condition when he appeared in the emergency room on April 28, 2010,

were not all explained by the instances that Mother and C.O. had described. No

new injuries were mentioned after J.D. was taken into foster care by CPS.

The record also details a history of abuse of Mother by C.O. C.O. admitted

slapping Mother once because she would not move out of the way; Mother

described an event in which C.O. slapped her while she was seven and a half

months’ pregnant because they were arguing over finances. Mrs. W. testified

that Mother appeared at her baby shower for K.O. with two black eyes; Mother

denied this. Mrs. W. testified that she had previously seen bruises on Mother’s

40 chest, legs, and arms. Mrs. W., Mr. W., and Jeffery believed that Mother was

being beaten by C.O., though Mother blamed her injuries on J.D.’s kicking her or

her running into a door or a chair. The record also disclosed that C.O. had

pleaded guilty to assault/bodily injury to a family member in 2005; he testified that

he had assaulted his ex-girlfriend by slamming her head against the trunk of an

automobile and slapping her because she would not get out of his way.

With regard to a history of substance abuse, C.O. had previously been

convicted for possession of marijuana, and he pleaded the Fifth Amendment

when asked when he had last used marijuana. The results of Mother’s

psychological evaluation were not presented, but C.O.’s psychological evaluation

revealed that he had been diagnosed with adjustment disorder with depressed

mood and psychotic disorder. One of the recommendations was that he be

treated for hallucinations.

The record demonstrated that Mother had completed the bulk of the

services on her service plan. Mother said that she had learned during the

parenting course and that she would call the police if her children were ever

placed in danger or injured by C.O. But, as mentioned in the Holley factor

analysis above, after completing two rounds of counseling, Mother would not

entertain the idea that C.O. had caused J.D.’s injuries and instead blamed them

on her mother, her mother’s husband, and her grandparents, though she had

never made a police report stating that any of these people had injured J.D.

41 The record also did not demonstrate that Mother had effected positive

environmental and personal changes or that she had adequate parenting skills.

Although Mother said that she had moved into an apartment with her friend

Debbie, neither CPS nor Mother’s extended family was convinced that Mother

had fully separated from C.O. By failing to achieve six months of separation from

C.O., Mother could not demonstrate that the children would no longer witness

domestic violence if they were returned to her. Even assuming that Mother had

moved from her home with C.O. in April, she had been living on her own for only

two months at the time the termination trial concluded, and the two-bedroom

apartment that she was sharing with Debbie would need another bedroom to

accommodate Mother and her two children in addition to Debbie and her three

children.

With regard to Mother’s parenting skills, she had failed to protect K.O. by

continuing to live with C.O., who had hit Mother while she was seven and a half

months’ pregnant with K.O.; she had failed to protect J.D. from C.O. and from

C.O.’s friend; she denied seeing any bruises when she had bathed J.D., even

though some of his bruises had been inflicted up to a week before the trip to the

emergency room and were so numerous that his condition was ruled Battered

Child Syndrome; she hid J.D. from Mr. and Mrs. W. for a three-week period; she

did not appear concerned when J.D. appeared in the emergency room for

treatment of his numerous injuries; and she was unable to control J.D. and

redirect him when he misbehaved during visits. And though Mother’s support

42 system included her grandparents, they were rejected as a possible placement

because they had seen bruises on J.D. on multiple occasions and had not

reported the abuse.

Considering the relevant Holley factors and the relevant statutory factors in

evaluating Mother’s willingness and ability to provide the children with a safe

environment, we hold that the evidence is both legally and factually sufficient to

support the trial court’s finding that termination of the parent-child relationship

between Mother and the children is in the children’s best interest. See K.A.S.,

131 S.W.3d at 226–30 (holding evidence legally and factually sufficient to

support trial court’s best interest finding because, among other things, mother

had failed to protect children from father and had not shown ability to stay away

from him; there was a history of domestic violence issues; father had sexually

abused child; and abused child needed safe, stable environment because of

mental and emotional issues). We overrule the first portion of Mother’s fifth

issue.

D. Failure To Place Children With Relatives Is Not A Ground For Reversal

In the latter portion of Mother’s fifth issue, she challenges the Department’s

placement of her children outside the family. This is not a ground for reversal on

appeal.30 See In re H.S.B., No. 02-10-00324-CV, 2011 WL 1434948, at *1 (Tex.

App.—Fort Worth Apr. 14, 2011, no pet.) (mem. op.) (citing C.H., 89 S.W.3d at

30 The intervenors did not appeal.

43 28, and explaining that TDFPS has no duty to make placement with relative

before parent’s rights can be terminated; the fact that placement plans are not

final or that placement will be with nonrelatives does not bar termination); In re

C.C., No. 02-04-00206-CV, 2005 WL1244672, at *6–7 (Tex. App.—Fort Worth

May 26, 2005, no pet.) (mem. op.) (same). We therefore overrule the remainder

of Mother’s fifth issue.

VII. CONCLUSION

Having sustained Mother’s third issue, thereby permitting review of

Mother’s first, second, and fourth issues, and having overruled those issues and

Mother’s fifth issue, we affirm the trial court’s judgment terminating her parental

rights to J.D. and K.O.

SUE WALKER JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: August 2, 2012