COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00121-CV
In the Interest of J.P., M.A., and § From the 323rd District Court M.V., Children § of Tarrant County (323-94161J-11)
§ November 29, 2012
§ Opinion by Justice Gabriel
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________ Justice Lee Gabriel COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
IN THE INTEREST OF J.P., M.A., AND M.V., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant H.P. (Mother) appeals the termination of her parental rights to
her children, J.P. (Jeffery), M.A. (Monica), and M.V. (Mark).2 Appellant A.V.
(Father) appeals the termination of his parental rights to his child, Mark. We
affirm.
1 See Tex. R. App. P. 47.4. 2 We use aliases for the children and their parents throughout this opinion. See Tex. R. App. P. 9.8(b)(2).
2 Background Facts
The Department of Family and Protective Services (DFPS or the
Department) first became involved with Mother in 2009 when it received a
referral for neglectful supervision. Mother’s oldest son, Jeffery, had fallen off of a
second-floor balcony.3 Jeffery was three years old at the time. Mother explained
that she had been folding clothes in the bedroom and had left Jeffery and Monica
in the other room for approximately twenty minutes. Jeffery opened the sliding
glass door to the balcony, stood on top of a trash can and fell over the railing.
Mother said that Jeffery had opened the glass door before and had unlocked the
front door in the past too. Jeffery did not suffer any physical problems after his
fall. DFPS placed the children with a friend of Mother’s family. Mother
completed her services, and the children were returned to her care.
In March 2010, Mother gave birth to her youngest child, Mark. Mother and
Father were raising all three children together. The children consider Father their
father.
In March 2011, Mother and Father brought Mark to Cook Children’s
Medical Center with swelling to his head. An examination by Dr. Sophia Grant, a
pediatrician at Cook Children’s, revealed a skull fracture and a possible fracture
of his tibia. Mark was not yet a year old at that time and could not walk on his
3 After a diligent search, Jeffery’s alleged father, M.A.C., and Monica’s alleged father, S.A., could not be located before trial. The trial court terminated M.A.C.’s and S.A.’s parental rights, and they are not parties to this appeal.
3 own. Dr. Grant testified that Mark’s head injury could not have occurred from him
hitting his head on a wall, which had been one of the explanations Mother had
offered. Dr. Grant also testified that Mark’s leg injury was not the kind of injury
that occurs accidentally.
DFPS took custody of Mark. Father refused to tell DFPS how to find
Monica and Jeffery. Mother was also uncooperative. DFPS was eventually able
to find Monica and Jeffery, and all three children were put in foster care.
After a bench trial, the trial court found that Mother had knowingly placed
or had knowingly allowed the children to remain in conditions or surroundings
that endangered their physical or emotional well-being, that she had engaged in
conduct or had knowingly placed the children with persons who had engaged in
conduct that endangered their physical or emotional well-being, and that
termination of her parental rights was in the children’s best interest. The trial
court also found that Father had knowingly placed or had knowingly allowed
Mark to remain in conditions or surroundings that endangered his physical or
emotional well-being, that he had engaged in conduct or had knowingly placed
Mark with persons who had engaged in conduct that endangered his physical or
emotional well-being, and that termination of his parental rights was in Mark’s
best interest. Mother and Father then filed this appeal.
4 Standard of Review
A parent’s rights to ―the companionship, care, custody, and management‖
of his or her children are constitutional interests ―far more precious than any
property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
5 established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort
Worth 2000, pet. denied).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a). Evidence is
clear and convincing if it ―will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established.‖ Id.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
Discussion
I. Endangerment
In Mother’s first two issues, she challenges the legal and factual sufficiency
of the evidence supporting the trial court’s findings that she endangered the
children. In Father’s first two issues, he challenges the legal and factual
sufficiency of the evidence supporting the trial court’s findings that he
endangered Mark.
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
6 reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
reasonable factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness-credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that the parents violated subsection (D) or (E) of section 161.001(1). Tex. Fam.
Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the entire record, the
7 disputed evidence that a reasonable factfinder could not have credited in favor of
the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction in the truth of its finding, then the evidence is factually
insufficient. H.R.M., 209 S.W.3d at 108.
―Endanger‖ means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under subsection (D), it is necessary to examine evidence related to
the environment of the children to determine if the environment was the source of
endangerment to the children’s physical or emotional well-being. J.T.G., 121
S.W.3d at 125. Conduct of a parent in the home can create an environment that
endangers the physical and emotional well-being of a child. In re W.S., 899
S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For example, abusive or
violent conduct by a parent or other resident of a child’s home may produce an
environment that endangers the physical or emotional well-being of a child. See
id. at 776–77; Ziegler v. Tarrant Cnty. Child Welfare Unit, 680 S.W.2d 674, 678
(Tex. App.—Fort Worth 1984, writ ref’d n.r.e.).
Under (E), the relevant inquiry is whether evidence exists that the
endangerment of the children’s physical well-being was the direct result of the
parents’ conduct, including acts, omissions, or failures to act. See J.T.G., 121
S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,
termination under (E) must be based on more than a single act or omission; the
statute requires a voluntary, deliberate, and conscious course of conduct by the
8 parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It
is not necessary, however, that the parents’ conduct be directed at the children
or that the children actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121
S.W.3d at 125. The specific danger to the children’s well-being may be inferred
from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W.,
129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). To determine
whether termination is necessary, courts may look to parental conduct occurring
both before and after the children’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex.
App.—Fort Worth 2001, no pet.).
A. The evidence
Kriste Moron, a DFPS investigator, was assigned to Mother’s 2009 case
regarding Jeffery’s fall. She testified that the sliding door that Jeffery opened has
a bar with a child lock on it. When she showed it to Mother, Mother told her that
she did not know what it was. Mother told Moron that Jeffery had gotten out on
the balcony on other previous occasions. When asked about what precautions
she had taken to keep Jeffery from opening the balcony door and front doors,
Mother showed Moron a child safety latch that she used on the front door.
Mother did not use the child safety latch on the balcony door, but she did keep it
locked.
Mother testified that Jeffery fell from the balcony because he was playing
Spiderman while she was in the bedroom. She said that Jeffery only ever got out
of the front door once. Mother also offered testimony that conflicted with her
9 previous statement when she testified that the day Jeffery fell was the only time
he had ever gotten onto the patio without her knowing. Mother said that she
knew that Jeffery knew how to unlock the sliding glass door, but he had always
unlocked it in her presence. Mother testified that she was vigilant in watching
Jeffery. When asked if she thought she could have prevented Jeffery’s fall, she
said, ―I truly don’t know.‖ Mother said she found out that Jeffery had fallen when
the emergency medical technicians knocked on her door.
Regarding Mark’s head injury, Mother said she was on the couch with
Monica and him when the clothes dryer finished its cycle. She left the children
on the couch to get the clothes, and when she walked back in the room, Mark
was lying on the floor, crying. Mother said she picked him up and checked him
for injuries but she did not see any. Mark stopped crying after Mother picked him
up.
Later that evening, Mother noticed swelling on Mark’s head. She applied a
warm compress with salt water to reduce the swelling. Mother noticed that Mark
was fussy and restless. Mother testified that she waited about four days before
taking Mark to the hospital. She admitted that waiting that long was not the
behavior of a vigilant parent, but said that she waited because Mark was not
crying. Mother testified that she told a DFPS worker or a police officer that Mark
might have hit his head on a wall in her bedroom, but at trial, she said that she
did not believe his injury was from hitting a wall.
10 Dr. Grant said that the leg injury was not a birth injury but that it occurred a
few days before the beginning of March 2011. She testified that leg injuries such
as Mark’s
happen if, say, for instance, a child is being shaken and the limbs are flailing and flapping back and forth, or say, for instance, in a diaper change, someone gets frustrated and the leg is jerked suddenly so that the insertion of the muscle on the outside edges of the bone actually pulls off a corner part of the bone.
Dr. Grant testified that this type of injury is ―an abusive injury.‖ She also said that
after the injury occurred, the parent or caretaker might not necessarily know that
the injury had occurred. However, she said that ―any reasonable person would
recognize that the level of force used to cause this type of fracture is
inappropriate. It’s not just normal diapering . . .; it’s a forceful jerk that is
inappropriate for this situation.‖
Mother testified that she had no idea that Mark’s leg was injured until the
hospital told her. She said that Mark was crawling and able to pull himself up
and had never appeared to be in pain. Dr. Grant said the head injury could have
occurred accidentally. It could happen when a child falls off of a bed on to a
wood floor, or if someone were to accidentally drop the child while carrying him.
Dr. Grant said that it was ―highly unlikely‖ that the skull fracture resulted
from hitting the corner of a coffee table because typically those injuries involve a
depression in the skull from where the head hit the table. She testified that
Mark’s injuries were the result of a lack of supervision, which concerned her.
The injuries appeared to have occurred within days of each other. Moron
11 testified that Mark’s injuries could only have been inflicted by the parents, but she
did not know which one injured him.
Moron said that no one reported any other caretakers for the children. At
trial, Mother testified that another man had been living with Mother and Father for
about three to six months. Mother said that the man did not care for Mark and
had only held him once, while Mother watched him. Mother testified there was
never a time that the man was alone with Mark. She said that she and Father
were the only people who ever cared for Mark.
Monica and Jeffery told a DFPS caseworker, through miming the incidents
because of the language barrier, that they had been physically abused at home.
Monica said she was dragged by her hair and Jeffery said that he had been hit
over the head with a broom. Jeffery had two gash marks on his head that he
claimed came from a broom being broken over his head.
Kerrill Mendez, a DFPS conservatorship worker, testified that the fact that
Jeffery fell out of a balcony and, two years later, Mark had unexplained injuries to
his skull and tibia was concerning because ―it seems like there is a continuance
in neglect.‖ Mendez testified that the parents were given services before, but she
did not think that the parents learned in their previous services because new
injuries to the children occurred.
B. The evidence is legally and factually sufficient
After one of her children opened the balcony door and fell two stories
because Mother had left him unsupervised, Mother continued to leave her
12 children unsupervised. Mother was not even aware that Jeffery had escaped
and fallen from the balcony until the emergency medical technicians knocked on
her door. Two years and one additional child later, Mother proved no more
capable of safeguarding her children or knowing that one of them was in need of
aid.
After noticing swelling on Mark’s head, Mother waited three or four days to
seek medical care. Mother claimed that she did not know Mark’s leg was injured
but at the time he was placed in foster care, Mark had severe problems with his
legs and could barely walk. The hospital also noted that Mark was underweight
and diagnosed him with failure to thrive.
Despite the parents’ insistence that they were the only caretakers, neither
parent was able to provide any likely explanation for Mark’s injuries. Dr. Grant
testified that Mark’s tibia fracture was an ―abusive‖ injury that could not have
occurred accidentally. See In re C.W., No. 13-08-00112-CV, 2009 WL 140524,
at *5 (Tex. App.—Corpus Christi Jan. 22, 2009, no pet.) (upholding trial court’s
endangerment findings when mother failed to explain child’s injuries and doctor’s
report noted that they were the result of ―non-accidental trauma‖); In re J.W., No.
02-08-00145-CV, 2008 WL 5056788, at *5 (Tex. App.—Fort Worth Nov. 26,
2008, pet. denied) (upholding trial court’s endangerment findings when, among
other things, mother continued to allow father to care for children despite father
being rough with the children but claiming that he did not know how children got
injured). The children told violent stories to DFPS about having their hair pulled
13 and being beaten with brooms. Jeffery had gashes where he said someone had
broken a broom over his head. Jeffery also had problems in school, was ―very
violent‖ and ―really angry,‖ and kicked and punched other children.
Looking at all the evidence in the light most favorable to the trial court’s
findings, giving due consideration to evidence that the fact finder could
reasonably have found to be clear and convincing, we hold that a reasonable
trier of fact could have formed a firm belief or conviction that Mother knowingly
placed or knowingly allowed the children to remain in conditions or surroundings
that endangered their physical or emotional well-being, and that she engaged in
conduct or knowingly placed the children with persons who engaged in conduct
that endangered the children’s physical or emotional well-being. A reasonable
trier of fact could also have formed a firm belief or conviction that Father
knowingly placed or knowingly allowed his child to remain in conditions or
surroundings that endangered his physical or emotional well-being, and that he
engaged in conduct or knowingly placed Mark with persons who engaged in
conduct that endangered the child’s physical or emotional well-being. We
overrule Mother’s first two issues and Father’s first two issues.
II. Best Interest
In Mother’s third issue, she challenges the legal and factual sufficiency of
the evidence supporting the trial court’s finding that termination of her parental
rights was in the children’s best interest. In Father’s third issue, he challenges
14 the legal and factual sufficiency of the evidence supporting the trial court’s finding
that termination of his parental rights was in Mark’s best interest.
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;
15 (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;
(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;
16 (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;
(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 v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (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. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
At the time of trial, Jeffery was almost seven years old, Monica was four
years old, and Mark was about to turn two years old. See Tex. Fam. Code Ann.
§ 263.307(b)(1). This case is the second time that DFPS has been involved with
Mother. See id. § 263.307(b)(2), (4). In 2009, Jeffery and Monica were removed
17 after Jeffery fell from the balcony. Jeffery did not suffer physical injuries from his
fall, but Mark had two unexplained injuries—one to his head and one to his leg—
when Mother and Father took him to the hospital in March 2011. See id.
§ 263.307(b)(3). Mark had trouble walking when he first went into care and was
underweight. He received treatment and had improved over time. See id.
§ 263.307(b)(12)(A).
Mendez testified that the children have indicated that they do not want to
return home to Mother and Father. See id. § 263.307(b)(5). Mendez said that
the children demonstrated ―what happened when they were at home.‖ They
showed that Monica would be dragged by her hair, and Jeffery said that he had
been hit over the head with a broom. Jeffery had two gash marks on his head
that he claimed came from a broom being broken over his head. Mother denied
ever pulling the children’s hair or hitting them with a broom. Mother denied that
Father had ever pulled their hair and when asked if he had ever hit them with a
broom, she said, ―No, I don’t know.‖
Mother testified that Father had a quick temper. See id. § 263.307(b)(7).
She said, ―He gets angry. But he doesn’t get angry to the point where he hits
somebody. When he gets angry, what he does is he leaves.‖ She said that the
last time she saw him get so angry that he had to leave was about two years
before trial. Mother testified that Father had never hit her.
Father said,
18 [T]hat thing that the lady is saying that he was hit with a broom, that’s a lie, but I do punish him, and when he doesn’t understand or I do have him go sit in the corner[.] I don't think any of us here, all of us here in the courtroom, I can’t imagine any of us not having reprimanded or punished our children, but that’s, what they’re saying when you come and you hit them like that, no.
Father said that he had spanked Jeffery but never so roughly as Jeffery claimed.
He said, ―I love my children. I’m not capable of hitting them or mistreating them.‖
Father testified that he pulled the children’s hair ―[w]hen [they] were playing.‖
When DFPS took Mark into custody, Father refused to provide information
on Monica and Jeffery’s whereabouts. Neither Father nor Mother ever provided
an explanation for Mark’s injuries. See id. § 263.307(b)(9). Mendez explained
that one of the goals in the parents’ service plans was to demonstrate their ability
to protect the children from future abuse or neglect but that neither parent had
met that goal. Neither of the parents could identify another caretaker or other
person who had the opportunity to harm Mark. At trial, Father still did not provide
an answer regarding the perpetrator of Mark’s injuries. He said, ―I can send him
to a day care or they can send [DFPS] to my house to keep supervising the
house, and I’ll pay for all that. I’ll pay for whatever has to be needed.‖ He said
that he and Mother had taken Mark to the hospital in February 2011 for bronchitis
and that hospital employees did a number of tests on Mark. Father said he saw
them pulling Mark’s legs.
The parents did not successfully complete their service plans by the time
of trial. See id. § 263.307(b)(10). Mother completed individual counseling.
19 Mother also completed a two-hour parenting class. Six months in to her
services, she was asked to complete additional parenting classes. DFPS did not
receive a certificate of completion by the time of trial.
Father attended two or three sessions of individual counseling at the
beginning of the case. In January 2012, he asked if he could start attending
counseling again. Since then, he only attended another one or two sessions by
the time of trial. Father was also asked to complete a positive discipline course,
but he did not turn in a certificate of completion to DFPS for the course. During
trial, Mother presented certificates of completion of the positive discipline course
for both parents.
Both parents regularly attended visitation. Father missed approximately
one visitation a month because of his work schedule. Mendez testified that
Father was bonded to the children. See id. § 263.307(b)(12)(B). Mendez did
express concern that Jeffery was not interacting with the family at the beginning
of the case, but by the time of trial, he was interacting well with the whole family.
Mother testified that Jeffery had been doing fine in school while in her care.
She believed that he was performing at an advanced level for his age. Mother
testified that she disciplined her children by reprimanding them and taking away
their toys. She said she has never spanked them, but she did not know if Father
had ever spanked them. Mendez testified that when Jeffery came into care, he
was ―very violent,‖ and would act out and punch and kick other children. See id.
§ 263.307(b)(12)(F). Jeffery was very angry and was suspended soon after
20 starting school. Mendez said this was not typical behavior for a four-year-old.
She testified that Jeffery was doing much better by the time of trial. He was no
longer getting suspended from school, although he still had some ―issues with
boundaries.‖ Mendez believed that Jeffery’s relationship with his siblings was
―way better‖ than it had been. She said, ―He’s a lot more loving. He used to
push and, you know, was really kind of aggressive with his siblings, but just
recently, I think it was last Friday, I observed him just playing with his siblings
and loving on them and actually asking, are you okay?‖
Mother worked as a house cleaner and Father worked as a roofer. Mother
testified that she and Father pay equal shares of the bills, and they do not
struggle to pay them. Mother had worked for her employer for about three
months by the time of trial. Before her current job, Mother had not been working;
she testified that this was the only job she had held in the year before trial.
Father earned around $1,000 to $1,200 a week. Mother testified that sometimes
Father was paid in cash and sometimes he received a check. Mother did not
provide DFPS with any income verification documents. She testified that she
made about $400 a week. Mother has a daughter who lives in Honduras with
Mother’s ex-mother-in-law. Mother sends $200 every other week to support her
daughter.
Mother drove Father’s truck, but she did not have a U.S. driver’s license.
Father said he had a driver’s license from Mexico. Father said that if the children
had been returned to him at trial, they could have gone home with him ―and do
21 well and in the future have a career.‖ He said he could pay his sister-in-law to
take care of them while he and Mother were at work. Father said the children
had been registered at school and he would make sure they were registered
again if they were returned.
Mendez testified that the Department believed that adoption was the best
plan for the children because it provided permanency. The children were placed
in a dual-licensed foster home, but the foster home indicated that they were not
interested in adopting the children. Mother testified that she did not know if her
children were being abused or neglected in their foster care but at her last
visitation, Mother said Jeffery’s thumb was injured. In January 2012, a family
friend, S.J.P., offered to adopt the children if the parents’ rights were terminated.
DFPS conducted a home evaluation, but was concerned that S.J.P. was not
making enough money to support herself and the children. All of the other
placements suggested by the parents were denied for various reasons, including
that all of the suggested placements were living illegally in the United States,
which would prevent them from adopting the children through DFPS.
DFPS had begun home studies for potential adoptive placements for the
children. Mendez testified that, at the time of trial, DFPS had about ten to fifteen
potential placements that the Department believed were good candidates for the
children. Mendez testified that if the parents’ rights were terminated, DFPS
planned to immediately move the children in to one of the preapproved adoption-
22 motivated homes. She believed that it would be relatively easy to find an
adoptive home for the children.
B. The evidence is sufficient
Mother continued to leave her children unsupervised, despite a
documented previous instance of danger to the children and services to prevent
a reoccurrence of neglectful or abusive parenting. The children reported multiple
incidences of physical violence in their home and they did not want to return to
Mother and Father. The parents did not complete their service plans, including
demonstrating their ability to protect the children from future abuse or neglect or
identifying the cause of Mark’s injuries. Considering the relevant statutory and
Holley factors, we hold that, in light of the entire record, and giving due
consideration to evidence that the jury could have reasonably found to be clear
and convincing, the trial court could reasonably have formed a firm belief or
conviction that termination of Father’s parental rights to Mark and Mother’s
parental rights to Jeffery, Monica, and Mark was in the children's best interests.
See In re A.T.K., No. 02-11-00520-CV, 2012 WL 4450361, at *15 (Tex. App.—
Fort Worth Sept. 27, 2012, no pet. h.) (mem. op.) (upholding trial court’s best
interest finding when, among other things, mother could not provide an
explanation for her two-month-old’s broken bones); In re T.T.F., 331 S.W.3d 461,
486–87 (Tex. App.—Fort Worth 2010, no pet h.) (upholding trial court’s best
interest finding when, among other things, the child was diagnosed with failure to
thrive and overcame that while in foster care). Accordingly, the evidence is
23 legally and factually sufficient to support the trial court’s family code section
161.001(2) best interest findings. We overrule Mother’s third issue and Father’s
third issue.
Conclusion
Having overruled Mother’s and Father’s issues, we affirm the trial court’s
judgment.
LEE GABRIEL JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DELIVERED: November 29, 2012