in the Interest of K. H., K. H., and L. H., Minor Children

• Court: Court of Appeals of Texas
• Decided: November 8, 2006
• Docket: 12-05-00077-CV
• Status: Published

Opinion

                NO. 12-05-00077-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§          APPEAL FROM THE 8TH

IN THE INTEREST OF K.H., K.H., AND §          JUDICIAL DISTRICT COURT OF

L.H., MINOR CHILDREN

§          HOPKINS COUNTY, TEXAS

MEMORANDUM OPINION

            Jeremy¹ and Christina Peckham appeal the termination of their parental rights.  In two issues, Jeremy and Christina challenge the order of termination.  We affirm.

Background

            Christina is the mother of three children, K.H., born March 28, 2002, K.H., born June 1, 2003, and L.H., born September 7, 2004.²  Michael Slater³

 is the father of K.H.1 and Jeremy is the father of the two younger children.  Christina and Jeremy married approximately three months after K.H.1 was born.  On July 30, 2003, the Texas Department of Protective and Regulatory Services (the “Department”) filed an original petition for protection of K.H.1 and K.H.2, for conservatorship, and for termination of Christina’s, Michael’s, and Jeremy’s parental rights.  In an affidavit attached to the petition, Belinda White (formerly “Morrow”), an investigator with the Department, requested that the Department be appointed temporary managing conservator of the children to ensure their safety and well being because of domestic violence in the residence and physical neglect of the children. On August 7, 2003, the Department was appointed temporary managing conservator of K.H.1 and K.H.2, and the parents were appointed temporary possessory conservators.  Both parents were ordered to comply with each requirement of the Department’s original, or any amended, service plan during the pendency of the suit.  Morever, the trial court found and notified both Christina and Jeremy that each of the actions required of them were necessary to obtain the return of the children, and that failure to fully comply with these orders might result in the restriction or termination of their parental rights.

            After L. H. was born, the Department, on October 25, 2004, filed an original petition for protection of L.H., for conservatorship, and for termination of Christina’s and Jeremy’s parental rights.  In an affidavit attached to the petition, Amanda Cedillo, an investigator with the Department, stated that she had “grave” concerns for L.H.’s well being based upon an ongoing case with his two older siblings who were in foster care and issues concerning physical neglect, confirmed cigarette burns on L.H.’s arm, conflicting stories from Christina regarding the origin of these burns, issues regarding nutrition and feedings, and lack of bonding and disregard for L.H.’s needs during an emergency room visit. Due to these concerns, Cedillo stated that L.H. had been placed in foster care and requested that the Department be appointed temporary managing conservator of L.H.  The Department was appointed temporary managing conservator of L.H., but the parents were not appointed temporary possessory conservators. 

            On November 17, the trial court consolidated the two cases.  A jury trial was conducted in January 2005.  At the conclusion, the jury found, by clear and convincing evidence, that Jeremy and Christina had engaged in one or more of the acts or omissions necessary to support termination of their parental rights.  The jury also found, by clear and convincing evidence, that termination of the parent-child relationship between Jeremy, K.H.2, and L.H. was in the children’s best interest.  The jury further found, by clear and convincing evidence, that termination of the parent-child relationship between Christina, K.H.1, K.H.2, and L.H. was in the children’s best interest.  Based on these findings, the trial court ordered termination of Jeremy’s and Christina’s parental rights. This appeal followed.

Jury Charge

            In their first issue, Jeremy and Christina argue that the trial court erred when it refused to submit their requested jury charge, including their definitions of “endanger” and “conduct.”  The  Department  contends that Jeremy did not request the proposed charge or object to the definitions of “endanger” and “conduct” included in the submitted charge.  Therefore, the Department contends, he has not preserved the complaint he raises on appeal.  The Department also argues that the trial court did not abuse its discretion in refusing to submit the proposed definitions.

Applicable Law

            Texas Rule of Civil Procedure 277 provides that the trial court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict.  Tex. R. Civ. P. 277; Magro v. Ragsdale Brothers, Inc., 721 S.W.2d 832, 836 (Tex. 1986).  A trial court’s refusal to submit requested instructions will not be reversed on appeal unless the court abused its discretion.  See Magro, 721 S.W.2d at 836; Harris County v. Bruyneel, 787 S.W.2d 92, 94 (Tex. App.–Houston [14th Dist.] 1990, writ denied). No abuse of discretion is shown unless the requested instructions were so necessary to enable the jury to render a proper verdict that the court’s refusal to include them in the charge probably caused the rendition of an improper verdict.  See Harris County, 787 S.W.2d at 94.  Explanatory instructions should be submitted when in the sole discretion of the trial judge they will help jurors understand the meaning and effect of the law and the presumptions the law creates.  Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 349 (Tex. App.–Fort Worth 1996, no writ.).  Any complaint about a jury charge is waived unless specifically included in an objection.  Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003).  A party must make the trial court aware of the complaint, timely and plainly, and obtain a ruling.  In re B.L.D., 113 S.W.3d at 349.

Analysis

            Christina and Jeremy filed requested charges with the trial court, asking that the definition of “endanger” be added to the jury charge to explain Texas Family Code sections 161.001(1)(D) and (E), and that the definition of “conduct” be added to explain Texas Family Code 161.001(1)(E).  At trial, Christina properly objected to the proposed jury charge and  requested the above definitions. The trial court denied her requested definitions.  Jeremy objected to the proposed jury charge definition of “clear and convincing.”  However, he did not join in the objections regarding the definitions of “endanger” and “conduct,” stating that he had no “additional” objections.  Because Jeremy failed to object to the definitions of which he now complains, he did not preserve the issue for appeal.  See Tex. R. Civ. P. 274.  We overrule Jeremy’s first issue.

            Regarding Christina’s objections, the jury charge stated that “endanger” means “to expose to loss or injury, to jeopardize.”  The charge stated that it was not necessary that the conduct be directed at the children or that the children actually suffer injury.  However, the jury charge also included the statutory language regarding termination of parental rights according to sections 161.001(1)(D) and (E).  The requested definition of “endanger” was that it “means more than threat of metaphysical injury or possible ill effects of less-than-ideal family environment.  There must be evidence of endangerment to the child’s physical or emotional well-being as a direct result of the conditions in which the child was placed.”  The requested definition of “conduct” was that under section 161.001(1)(E), conduct “must be more than a single act or omission; a voluntary, deliberate, and conscious ‘course of conduct’ by the parent is required.”  Although we admit that the requested definitions are more detailed than those in the jury charge, we cannot conclude that these definitions  were necessary for the jury to render a proper verdict.  See Harris County, 787 S.W.2d at 94.  Thus, the trial court did not abuse its discretion in refusing to submit the requested definitions.  We overrule Christina’s first issue.

Termination of Parental Rights

            Involuntary termination of parental rights embodies fundamental constitutional rights.  Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ denied).  A termination decree is “complete, final, irrevocable [and] divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit.”  Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.)  Because a termination action “permanently sunders” the bonds between a parent and child, the proceedings must be strictly scrutinized.  Wiley, 543 S.W.2d at 352; In re Shaw, 966 S.W.2d at 179.  However, parental rights are not absolute, and it is vital that the emotional and physical interests of the child not be sacrificed at the expense of preserving that right.  In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

            Section 161.001 of the Family Code permits a court to order termination of parental rights if two elements are established.  Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.).  First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection of the statute. Tex. Fam. Code Ann. § 161.001(1) (Vernon 2002); Green v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237.  Second, termination must be in the best interest of the child.  Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002); In re J.M.T., 39 S.W.3d at 237.  Additionally, both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner’s burden of proving the other. Tex. Fam. Code Ann. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.

            Due process requires a petitioner to justify termination by clear and convincing evidence because termination is such a drastic remedy.  In re J.M.T., 39 S.W.3d at 237.  The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated.  Tex. Fam. Code Ann. § 161.001; In re J.J., 911 S.W.2d at 439.  Clear and convincing evidence means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”  Tex. Fam. Code Ann. § 101.007 (Vernon 2002).  There is a strong presumption that the best interest of the child is served by preserving the parent-child relationship.  Wiley, 543 S.W.2d at 352; In re J.M.T., 39 S.W.3d at 240.  Thus, the burden of proof is upon the person seeking to deprive the parent of their parental rights.  In re J.M.T., 39 S.W.3d at 240.

Standard of Review

            When confronted by both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence.  Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no pet.).  Because termination findings must be based on clear and convincing evidence, the standard of review is not the same on appeal as a finding based upon a preponderance of the evidence.  In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).  Therefore, in conducting a legal sufficiency review, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true.  Id. at 266.  We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible.  Id.  This does not mean that we are required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis.  Id.

            The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.  In re C.H., 89 S.W.3d at 25.  In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court’s findings.  Id. at 27-29.  Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding.  In re J.F.C., 96 S.W.3d at 266.

            This standard retains the deference an appellate court must have for the fact finder’s role.  In re C.H., 89 S.W.3d at 26.  Additionally, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.  Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).  Thus, our review must not be so rigorous that only fact findings established beyond a reasonable doubt could withstand review.  In re C.H., 89 S.W.3d at 26.

Termination Under Section 161.001(1)(O)

            As part of their second issue, Christina and Jeremy contend that the evidence is legally and factually insufficient to support the trial court’s finding that they failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of K.H.1 and K.H.2.  They argue that there was ambiguity and vagueness between the trial court’s orders and what the jury was told they were required to do, that they “minimally” complied with the service plan in August 2004, and that they did not violate any specific order.

Applicable Law and Analysis

            A court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of a child who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.   Tex. Fam. Code Ann. §161.001(1)(O) (Vernon 2002).

            It is undisputed that the Department had temporary managing conservatorship of K.H.1 and K.H.2 since August 7, 2003.  According to White, the case was initiated because of domestic violence in the home and physical neglect of both children.  This evidence establishes that K.H.1 and K.H.2 were removed as a result of Christina’s and Jeremy’s abuse or neglect.  Each of the two service plans admitted into evidence required tasks to be completed by the parents and were divided into “areas of concern.”  We will address each area of concern, the tasks required of the parents, and their completion and demonstration of these tasks.⁴

Child Vulnerability

            Both parents were required to address physical abuse concerns and ordered to attend parenting classes and to demonstrate the skills that they learned.  Regarding these tasks, a progress report dated May 20, 2004 stated that the parents attended all parenting classes and received a certificate of completion.  Further, the parents began unsupervised visits on March 8 and the Department’s worker monitored the visits through unexpected drop-in visits.  The Department worker noted that the parents had difficulty maintaining a proper feeding regime for the children as well as keeping them clean.  Christina stated that, most of the time, she practiced what she learned in parenting classes, but admitted that she failed sometimes.

Caregiver Capability

            Both parents were required to learn appropriate ways to handle their anger.  They were

ordered to actively participate in counseling, individually and together, to address anger management skills and domestic violence issues, demonstrate their skills, and participate in play therapy. According to the May 20 progress report, the parents’ counselor was concerned about the lack of change in the parents’ behavior and patterns, both parents continued to be in denial, and domestic violence issues continued in the home.  The Department’s worker, the Court Appointed Child Advocate (“CASA”) worker, and the homemaker, Lisa LaFever,⁵ assigned to work with the parents,  noticed an increase in stress in the parents since visitations were increased.  Christina denied that Jeremy had ever hit her or that she had hit him intentionally, although they wrestled and played around.  She admitted that she and Jeremy had arguments, but never “all and all out beat each other.”

            Mitzi Stephens, a family and children’s worker with the Department, stated that she was involved in the case for three months beginning in August 2003.  She was concerned that the parents continued to deny that they had any problems in their home, continued to deny that there was a domestic violence issue, and continued to deny the reason their children were removed.  Stephens agreed that, for the most part, Christina and Jeremy were doing what she told them to do, including parenting classes, anger management classes, and visitations.

            Reba Clark, a licensed professional counselor, began counseling Christina and Jeremy on September 30, 2003 and ended her services in June 2004.  She worked with Christina and Jeremy on issues regarding allegations of domestic violence, family dynamics, and marital problems.  Clark stated that Christina and Jeremy consistently denied that they had any kind of domestic violence problem.  Jeremy informed Clark that he had been to a class in anger management, did not feel that he needed it, and was not receptive to doing it again.  Clark testified that she was concerned that Jeremy was too reliant and dependent upon Christina for his reactions.  She observed substantial improvement with Christina regarding her issues.  According to Jennifer Durham, a case worker with the Department, the parents attended counseling and completed psychological evaluations, but did not demonstrate anything that they learned in counseling.

Maltreatment Pattern

            Both parents were ordered to demonstrate the ability to protect their children from future abuse and show concern for their children’s future safety.  They were ordered to stay away from or supervise their children when visiting relatives with a history of domestic violence or abuse.  The May 20 progress report acknowledged a high level of concern because of the history of violence in the family.  Christina admitted that she wanted her mother to move in with her and Jeremy, but that the Department would not allow it because of her mother’s past history with the Department.

Quality of Care

            Both parents were ordered to maintain a relationship with their children while they were in foster care, demonstrate the ability to provide their children with adequate care and nurturance, keep the children safe and clean during visitations, and provide food, shelter, clothing, and age related supervision for the children.  The Department noted concerns of cleanliness and roach infestation of the home.  However, the progress reports noted that, for the most part, the parents had attended and actively participated in visitations.

            Christina admitted missing several, if not half, of the scheduled visitations with her children in August, September, and October 2004.  During one scheduled visit, she was in the hospital giving birth to L.H.  Christina admitted that,  in the October 8 court hearing, the Department stated that, if she and Jeremy visited the children on four consecutive scheduled dates, it would consider a monitored return.  However, she admitted missing all four visitations.  She explained that one of the visits was on Columbus Day and that they believed they could not see the children on a holiday. Christina stated that, although Jeremy attempted to call the Department office, he did not receive an answer.  The next week, she did not visit the children because she and Jeremy were moving appliances into their apartment.  Stephens stated that some of the visitations between the parents and the children were appropriate, and some were not.  Stephens stated that although it was appropriate that the parents brought cameras to the visits, they took pictures one after the other instead of visiting with their children.  Stephens also stated that, in visits with K.H.2, both parents would hold K.H.2, talk to her, feed her, and change her diaper.

            Durham began working with Christina and Jeremy in November 2003 and left the case in August 2004.  Durham’s main concern was that the parents did not respond to the service plan and did not appear to be concerned about the tasks that needed to be completed in order to have their children returned.  They did not appear to be loving, nurturing, or caring toward the children nor did they appear to participate much in activities with the children.  Neither parent demonstrated parenting skills when Durham visited their home.  According to Durham, the parents had to be told to change diapers and to be sure to have formula and food.  They also had to be told the feeding regime.  Durham testified that, during one visitation, K.H.2 was on the floor while Christina was on the couch.  Durham stated that pieces of food were all over the floor and K.H.2 picked up a piece of hot dog and began to choke.  Christina failed to respond.  Durham stated that she had to point out that K.H.2 was choking.  During another visitation, K.H.1 had diarrhea running out of her diaper and down her legs.  Durham stated that the parents saw the situation, but did not respond.  Christina’s and Jeremy’s lack of response concerned Durham.  When the children were sick, the parents did not hold them, call the doctor, or call the Department worker as requested.  On several occasions, she discovered an antibiotic on the table when it should have been refrigerated.

            Ginger Brooks, a licensed professional counselor, provided play therapy or counseling for K.H.1 beginning March 22, 2004 and ending September 29, 2004.  She observed K.H.1 and the family unit.  In the beginning, Brooks observed little interaction between the parents and the children.  Most of Christina’s interaction was with K.H.1, and most of Jeremy’s was with K.H.2. Brooks was concerned because she felt that Christina neglected K.H.2 and did not show any parental care that would lead to their forming an attachment.  Brooks stated that she rarely saw Christina touch K.H.2, smile at her, verbalize or make eye contact with her, or gaze in her direction.  Christina admitted that she never had a bond with K.H.2

            Brooks observed some improved attachment.  In August, she and K.H.1 were outside the building and, when K.H.1 saw Christina in the parking lot, she cried out “mom” and went towards her. Brooks observed that Christina and K.H.1 had a lack of attachment, and she saw no attachment at all between Christina and K.H.2.  Brooks did not see any attachment between Jeremy and K.H.1 and only a limited attachment between Jeremy and K.H.2.  Brooks agreed that the lack of hours that Christina and Jeremy spent with the children could cause problems with attachment.

            Cindy Mannon, the CASA worker for the children, testified that she was concerned in the initial visitations because the visits seemed to be more about getting pictures.  After Christmas, Christina and Jeremy began visitations with the children at their home, and Mannon checked on the parents once or twice per day during the three day visits.  Over time, it became clear to Mannon that Christina and Jeremy were not going to cooperate or do what was required by the Department. Although they attended parenting classes, they did not apply what they learned.  Mannon stated that, most of the time, K.H.2 was not held and was either in the play pen or on the floor.  K.H.1 would be watching cartoons.  Mannon stated that, when she picked up the children after their three day visitations, they were dirty.

            Mannon testified that, during one three day visitation in March 2004, she checked on Christina and Jeremy in the late afternoon at the beginning of the visitation.  Christina and Jeremy admitted to Mannon that K.H.2 had not had a bottle all day.  She stated that K.H.2 was obviously hungry, “lurching” toward food that was not baby food.  Jeremy attempted to feed K.H.2, but she was so hungry that she was fighting the spoon.  As a result, Jeremy told Mannon that K.H.2 was not hungry and gave up trying to feed her.  Mannon discovered that they did not have any other baby food and, although they had baby formula, they did not have a nipple for the bottle.  At that point, Mannon bought baby food, a bottle, nipples, and juice and brought the food back to the family.

Home Environment

            Both parents were ordered to provide an appropriate home for small children, provide financially for the children, and have needed items for small children.  Christina was ordered to look into obtaining her General Education Development diploma (“GED”) to increase her employability and the family’s income.  Jeremy was ordered to assess his employability, job skills, and potential employment.  Both parents were ordered to show that they could provide adequate income, decent housing, reliable transportation, and all the daily provisions for developing children.  The May 20 progress report acknowledged that Jeremy found a job, but that Christina remained unemployed. Further, the report noted that Christina discontinued GED classes.

            Christina admitted that her rent had not been paid consistently and that she was evicted from her apartment in May 2004.  She was able to find another apartment when a church paid the deposit and first month’s rent.  However, she also admitted that, prior to trial, she was served with an eviction notice for her current apartment for nonpayment of rent, but was not evicted because her attorney loaned her the money for rent.  Christina stated that she worked for Avon for a few months, the only job she obtained during the pendency of the cases.  Later in her testimony, Christina stated that, the week after trial, she would begin babysitting six children in her apartment for her sister and a friend.  As a result, she would be making approximately $250 per week. However, she acknowledged that she had not checked with the health department regarding her babysitting and did not know the difference between babysitting and daycare.  According to Christina, Jeremy was working steadily, making approximately $5.85 per hour, seven days a week including overtime.

            Christina admitted that she did not obtain her GED, but argued that the classes interfered with her parenting classes and visitations.  Christina stated that, after missing four Monday GED classes because of the conflicting classes, she was “disqualified” to continue.  She also stated that, after parenting classes were completed, she had to wait for the next semester to attend GED classes, but could not attend because Jeremy was working and she had the children.

            Clark worked with both parents on their job skills and opportunities, communication, problem solving, decision making, and budgeting.  Although Clark encouraged Christina to obtain her GED, Christina did not follow through and told Clark that she did not need it.  According to Clark, Christina stated that she did not want to work, that she wanted to be a stay-at-home mother, and that she did not need the education.  Clark stated that it was impossible to “add up” the family’s income versus expenses.  Clark stated that, when Christina attempted to figure their budget, she used actual figures, but would add in income that she “could” make.  Clark stated she told them that Jeremy needed to work, but denied telling them that Jeremy had to get a certain high paying job.

            Stephens was also concerned about Christina’s and Jeremy’s financial ability to care for themselves, even without the children.  At the time, the only income they had was from a part time job working with Christina’s mother providing home health care.  On September 29, 2003, Stephens visited Christina’s and Jeremy’s home and found it appropriate and clean.  She also stated that the parents had formula, diapers, and necessities for both children.  Lisa LaFever, the homemaker  assigned to work with Christina and Jeremy, said she never witnessed the parents not tending to the children’s needs, but admitted that she saw the parents with their children only seven times. Although LaFever stated that her assessment was “good,” it was not her duty to report on the family’s progress in the areas that she taught.

Social Environment

            Both parents were required to be and have their home free of drug or alcohol problems or concerns and participate in a drug and alcohol assessment.  The May 20 progress report stated that the assessment was completed with no further recommendations.

Response to Intervention

            Both parents were ordered to cooperate with the Department and follow any and all recommendations.  The May 20 progress report stated that the parents had problems with denying stress or issues to be addressed in counseling.  The progress report also stated that the children had not been clean upon leaving the parents’ house and had flea or roach bites on them.  The report included concerns that the children lacked adequate care.

            We note that, in the August 9, 2004 permanency hearing order, the trial court found that both parents had minimally demonstrated adequate and appropriate compliance with the service plan. However, in the October 8, 2004 permanency hearing order, the trial court found that neither parent had fully demonstrated adequate and appropriate compliance with the service plan.  Further, John Watkins, the conservatorship supervisor at the Department, stated that he was not happy with Christina’s and Jeremy’s compliance with the service plan.  His primary concern was Christina’s and Jeremy’s ability to demonstrate skills they had been taught and, in his opinion, neither had followed through with the service plan.  Watkins stated that both parents refused to acknowledge the issues resulting in the Department’s involvement and did not make significant changes in their lives to keep the Department from being involved.

Conclusion

            Viewing the evidence in the light most favorable to the finding, a reasonable fact finder could have concluded that Christina and Jeremy failed to comply with the Department’s service plan.  Both parents had difficulty maintaining a feeding regime, providing food, adequate care, and nurturance. They failed to provide age related supervision, having to be told to help a choking child, change a diaper, obtain food, and refrigerate medication.  They failed to demonstrate the skills they learned in parenting classes and counseling and denied having any domestic violence problem.  Both parents failed to bond with their children or attempt to bond with them, missing numerous visitations and failing to interact with their children.  Christina failed to obtain her GED or a job.  The parents were evicted from at least one apartment and, on only one small income, were unable to provide financially for the children.  Therefore, we conclude that the evidence, viewed in the light most favorable to the finding, was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief or conviction that Christina and Jeremy failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of K.H.1 and K.H.2 who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the children.  See Tex. Fam. Code Ann. § 161.001(1)(O).

            Although there is conflicting evidence that Christina and Jeremy attended parenting classes, visitations, and counseling, the jury could have found that they failed to demonstrate any of the skills learned in these tasks.  The jury could have found that mere completion of parenting classes, for instance, was not compliance when they failed to demonstrate parenting skills.  Moreover, this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that Christina and Jeremy failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of K.H.1 and K.H.2 who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the children.  See Tex. Fam. Code Ann. § 161.001(1)(O).  Accordingly, that portion of Christina’s and Jeremy’s second issue regarding K.H.1 and K.H.2 is overruled.⁶

Termination Under Section 161.001(1)(E)

            As part of their second issue, Christina and Jeremy contend that the evidence is legally and factually insufficient to support a finding that they engaged in conduct or knowingly placed L.H. with persons who engaged in conduct that endangered his physical or emotional well being.

            Section 161.001(1)(E) of the Texas Family Code states that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well being of the child.  Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon 2002).  The specific danger to the child’s well being need not be established as an independent proposition, but may instead be inferred from parental misconduct.  Texas Dep’t of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.J., 911 S.W.2d at 440.  Further, scienter is not required for a parent’s own acts under section 161.001(1)(E), although it is required when a parent places his child with others who engage in endangering acts.  In re U.P., 105 S.W.3d 222, 236 (Tex. App.–Houston [14th Dist.] 2003, pet. denied).  Finally, the need for permanence is a paramount consideration for the child’s present and future physical and emotional needs.  In re N.K., 99 S.W.3d 295, 301 n.9 (Tex. App.–Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200.

            As previously discussed, “endanger” means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533; In re D.M., 58 S.W.3d 801, 811 (Tex. App.–Amarillo 2001, no pet.).  It is not necessary that the conduct be directed at the child or that the child actually suffers injury; rather, it is sufficient that the child’s well being be jeopardized or exposed to loss or injury.  Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440.

            Subsection (E) requires us to look at the parent’s conduct alone, including actions, omissions, or the parent’s failure to act.  In re D.J., 100 S.W.3d 658, 662 (Tex. App.–Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811.  It is inconsequential that the parental conduct occurred before the child’s birth.  In re U.P., 105 S.W.3d at 229; In re D.M., 58 S.W.3d at 812.  Instead, courts look to what the parent did both before and after the child’s birth to determine whether termination is necessary.  In re D.M., 58 S.W.3d at 812.  Further, termination under subsection (E) must be based on more than a single act or omission.  Id.; In re D.T., 34 S.W.3d 625, 634 (Tex. App.–Fort Worth 2000, pet. denied).  A voluntary, deliberate, and conscious “course of conduct” by the parent that endangers the child’s physical and emotional well being is required.  In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.

            Regarding the parental rights of L.H. only, Joshua Lockwood, Christina’s cousin, testified that he lived with Christina’s mother, Christina, Jeremy, and L.H. at the end of September 2004. He contacted CASA on October 22, 2004 after noticing burn marks on L.H.’s arm.  Lockwood testified that the marks on L.H.’s arm looked like cigarette burn marks, perfectly circular, and three of them were on his upper arm.  Lockwood also stated that L.H. had a slight diaper rash that did not “look good,” but admitted treating it with medication that Christina gave him.  Although it was the parents’ job, Lockwood stated, he changed most of L.H.’s diapers and testified that, in the mornings, Christina and Jeremy would not wake up when the baby screamed.

            Cedillo testified that she received a report on October 22 alleging that L.H. had burn marks on his arm and a diaper rash, and was not being fed appropriately.  Upon arriving at the parents’ apartment, Cedillo found Brandi Higar watching L.H., and five to seven other people were coming in and out of the apartment.  According to Cedillo, Higar was familiar to her from a previous investigation of alleged neglect of Higar’s child.  Cedillo stated that Higar would not let her see L.H. until she checked with Christina and, when contacted, Christina asked Cedillo to wait outside until she arrived.  When Christina arrived, she told Cedillo that there were no marks on L.H.  Cedillo stated that the apartment was too hot for her to stay.  L.H. was dressed in a sleeper with the hands and feet enclosed.  Cedillo stated that, after she examined L.H. and noted that he had cigarette burns on his arms, a diaper rash on his buttocks going up the side of his stomach and part of his leg, and rashes under his armpits, she took L.H. to the Hopkins County Memorial Hospital emergency room.  Christina and Higar were also present, and Jeremy arrived later.

            Cedillo was troubled regarding Christina’s and Jeremy’s lack of concern for the child in the hospital emergency room and lack of proper feeding.  Cedillo stated that, while they were waiting for L.H. to be examined, Christina and Jeremy went outside, ordered pizza, and smoked cigarettes while she and the CASA worker watched the baby.  When the parents were inside the hospital, Higar primarily cared for L.H. Christina appeared to be very hesitant to nurture the baby when he began crying.  Cedillo observed Higar feed L.H. a bottle and found it unusual that the baby ate approximately sixteen to twenty ounces during the four to five hours they were in the waiting room.  When asked how L.H. received the cigarette burns, Christina gave at least four inconsistent stories.  At the apartment, Christina said that they were moving, L.H. screamed, and when she checked on him, she found red, seeping blisters.  To the emergency room doctor, Christina stated that they were driving to her mother’s house with her mother in the back seat while she and Jeremy were in the front seat.  When L.H. began screaming, she “jumped” back to look and discovered seeping blisters.  Cedillo stated that the emergency room physician could not determine whether the burns were accidental or intentional and that they were possibly consistent with Christina’s second version of the incident.  According to Cedillo, Christina gave two additional versions of how the burns occurred, with one version having her mother in the back seat smoking and another version having just Christina and Jeremy in the car.  The inconsistent stories concerned Cedillo.  She found that there was “reason to believe” the allegations based upon the doctor’s examination and decided to remove L.H.  She believed that the siblings’ being in foster care contributed to the decision to remove L.H, but other factors for removing him included the age of the child, cigarette burns to his arm, a diaper rash that was severe enough to reach his stomach, and issues with feeding patterns.

            Sherry Johnson, a CASA worker, observed L.H. when they left the apartment and went to the hospital.  According to Johnson, L.H. was dirty and had a very wet diaper and burn marks.  According to Johnson, the parents did “nothing” to care for the child in the emergency room.  The parents ordered pizza, ate it in the hall, and went outside to smoke. She remembered that Higar fed L.H. about sixteen ounces of formula and that the baby was throwing up from the amount of formula.

            Dr. David Patterson, an emergency room physician at Hopkins County Memorial Hospital, came in contact with L.H. on October 22, 2004.  According to Patterson, L.H. had a “pretty bad” diaper rash and several burns on his right arm that he believed were cigarette burns. He estimated that the burns were one to two weeks old and seemed to result from a cigarette laying sideways against the child, in direct contact, for more than a moment because one of the burns was deeper than the others.  Patterson believed that the cigarette had to have fallen on L.H. or been placed there.  He was concerned because the child was in proximity to a cigarette where he could be burned, that medical care was not sought when the burns occurred, and that the cigarette appeared to have been in contact with the child more than momentarily.  When he asked Christina how much formula L.H. took, Christina stated that he had one to two eight-ounce bottles four to five times a day.  In Patterson’s opinion, that was not possible,  and he believed that her answer was consistent with the answer of someone who had not been the child’s caregiver.  Higar testified that she had known Christina and Jeremy for approximately two weeks, that the Department was involved in a case with her youngest child, and that Christina was aware of the situation with her children. As far as the temperature in the apartment, Higar stated that it was fine.

            When the Department investigated L.H.’s burns, Christina admitted that she was out of town moving her mother, that Jeremy was working, and that L.H. was being cared for by Higar.  She testified that she had known Higar a couple of months and that she knew Higar’s children lived with their father.  Christina stated that she had no personal knowledge that Higar’s children were removed to foster care.  However, she admitted that she had little insight into whether Higar could care for L.H. Christina admitted that L.H. had a diaper rash, but said she was treating it.  While at the emergency room, she asked a friend to bring her something to eat.  Christina testified that she was holding L.H. and trying to change his outfit because he spit up.  According to Christina, both the CASA worker and the Department investigator asked if they could hold L.H. while she went outside and ate.

            Viewing the evidence in the light most favorable to the finding, a reasonable fact finder could have concluded that Christina and Jeremy were unable to prevent L.H. from being burned by cigarettes and that they left him in the care of Higar who they knew was unable to care for her own children.  While L.H. was in Higar’s care, the apartment was extremely hot and the baby was in obvious distress.  The jury could have determined that Christina and Jeremy evidenced no care or concern for L.H. while in the emergency room, that Christina’s accounts of the burns were contradictory and thus not believable, and that Christina did not know how to properly and adequately feed L.H.  Along with previous testimony regarding the lack of concern shown for their other two children, the jury could have determined that Christina and Jeremy had engaged in a voluntary, deliberate, and conscious “course of conduct.”  See In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.  Therefore, we conclude that the evidence, viewed in the light most favorable to the finding, was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief or conviction that Christina and Jeremy engaged in conduct or knowingly placed L.H. with persons who engaged in conduct which endangered his physical or emotional well being.  See Tex. Fam. Code Ann. § 161.001(1)(E).

            Although there is conflicting evidence of how L.H. was burned by a cigarette, the jury could have resolved this conflict in favor of its finding.  Although there is some disputed evidence, this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that Christina and Jeremy engaged in conduct or knowingly placed L.H. with persons who engaged in conduct which endangered his physical or emotional well being.  See Tex. Fam. Code Ann. § 161.001(1)(E).  Accordingly, that portion of Christina’s and Jeremy’s second issue regarding L.H. is overruled.⁷

Best Interest of the Child

            We now turn to the jury’s finding that termination is in the best interest of the children.  As part of their second issue, Jeremy and Christina argue that there is not clear and convincing evidence that termination is in the children’s best interest.

            In determining the best interest of the child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

            This list is not exhaustive, but simply indicates considerations that have been or could be pertinent.  Id.  However, the best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors.  In re D.M., 58 S.W.3d at 814.  The Holley test focuses on the best interest of the child, not the parent’s best interest.  Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.–Dallas 1995, no writ).  We  consider the Holley factors below and examine the evidence not previously described.

The desires of the children

            The children were too young to testify regarding their desires.  K.H.1 did exhibit some bonding at one time with Christina, but Durham, Brooks, and Mannon agreed that the parents were minimally bonded to the children, if at all.

The emotional and physical needs of the children now and in the future

            Brooks stated that K.H.1 had adjustment disorder with anxiety that was caused, in part, by the visitation schedule and possible neglect in the parents’ home.  According to Brooks, K.H.1 exhibited trouble sleeping, and she noted that lack of sleep contributed to K.H.1's disorder because of her inability to relax and feel comfortable in her parents’ home and care.  Further, Brooks stated that, if the parents could not pay the rent, it would be more difficult for the parents to meet the needs of the children.

The emotional and physical danger to the children now and in the future

            Regarding the lack of attachment between the children and their parents, Brooks testified that if the children were returned and the parents did not have the skills leading to improved attachment, the children could be harmed. Gerald Shore, Ph.D. conducted a psychological evaluation of Christina and Jeremy. Shore stated that, if the parents could not provide adequate and consistent income, stable housing, reliable transportation, or sufficient income to supply the daily provisions to developing children, then it did not sound as though the parents could or would care for their children.

The parental abilities of the parents seeking custody

            The evidence previously introduced showed that the parents demonstrated minimal ability to parent, according to the Department, CASA workers, and counselors.  However, Christina stated that she loved her children.  Shore testified that Christina exhibited schizoid and self-defeating traits.  He stated that, despite the fact that Christina was very intelligent, she did not make decisions that were in her or her children’s best interest.  Shore found Christina to be extraordinarily defensive, more than anyone he had ever seen.  However, Shore stated that Christina was intelligent enough to benefit from counseling and make different decisions.  Shore testified that Christina’s appropriate expectation of children’s developmental strengths and weaknesses was marginal.  All other measures were acceptable, and over twenty percent of Christina’s answers suggested a lack of knowledge that could be corrected with parental training.

            According to Shore, Jeremy’s scores were all marginal in the adult adolescent parenting inventory indicating a need for parenting education and training.  Shore stated that half of Jeremy’s remarks indicated that he had no particular opinion and, comparing the rest of his responses, indicated that he was afraid to express an opinion.  Shore stated that, on the child abuse potential inventory, Jeremy was not lying, but making socially desirable answers indicating his level of defensiveness.  Shore stated that Jeremy was defensive and unwilling to commit himself and, thus, unwilling to change or accept good advice from others.

The programs available to assist the parents

            Christina and Jeremy were offered and completed parenting classes, counseling services, transportation to visitations, homemaking services, and employment services.  Even though they took advantage of most of these programs, Durham, Brooks, and Mannon stated that the parents failed to demonstrate any of the skills they learned in these programs.

The plans for the children by the parents

            Christina testified that Jeremy had talked to his employer about a full time job.  His supervisor stated that he would recommend Jeremy for a full time position when one was available. During trial, Christina stated that she obtained two babysitting jobs beginning the next week.  She admitted that the family might need additional counseling if the children were returned because the children had been gone so long.

The stability of the home

            Christina admitted that she and Jeremy were evicted from one home and received an eviction notice for their current home immediately before trial.  The evictions seemed to be the result of nonpayment of rent.  The parents seemed to need continuous financial help from a church or their attorney to stay in an apartment or get a new one.

The acts or omissions of the parents that may indicate the existing parent-child relationship is not a proper one

            Officer Lynnwood Fox, II, a patrol officer with the Sulphur Springs Police Department, testified that he received a domestic family disturbance call concerning Christina and Jeremy at  approximately 1:59 p.m. on June 11, 2003.  Upon arriving at Christina and Jeremy’s apartment, he found Jeremy, Christina’s sister Melissa McBride, K.H.1, K.H.2, and another child in the apartment.⁸  Fox spoke to Melissa and Jeremy separately and stated that they recounted a similar story.  Jeremy told Fox that Christina became upset with him because he wanted to go to the store with Melissa and that the conversation turned into an argument.  According to Fox, Jeremy stated that Christina pushed him, that K.H.1 was behind him, and that he stepped on K.H.1's finger.  Jeremy told Fox that, at this point, Melissa stepped between the couple and began arguing with Christina. According to Fox, Jeremy stated that Christina pushed K.H.1 to the ground and stepped on her.  Fox testified that he asked Jeremy if Christina saw K.H.1 and Jeremy stated that Christina was looking at K.H.1 as she stepped on her.  Based on that comment, Fox believed that Christina intentionally pushed K.H.1 down and stepped on her.  Regarding the children, Fox testified that K.H.1 had bites all over her body, a severe diaper rash including discoloration and a rash on her buttocks, a brown quarter sized bruise on her cheek, redness and swelling around her right eye, and a scratch that extended from the corner of her right eye to her cheek, about one inch in length.  Christina told Fox that the bruising occurred when K.H.1 hit a coffee table.  Fox stated that the bruise was darker and possibly older, but that some of the injuries looked “fresh.”  Because of the allegations that K.H.1 was allegedly intentionally struck and K.H.1 had visible injuries,  Fox contacted the Department.  Fox stated that charges of injury to a child were subsequently filed against Christina.

            White testified that the Department received a report alleging physical abuse, neglectful supervision, and physical neglect based upon an incident of domestic violence.  In response, she met with Fox, both parents, and both children at the Sulphur Springs Police Department.  Both parents told White that they had a fight on whether they were going to separate and that, during the fight, both of them stepped on K.H.1. According to White, K.H.1 had bruising to her face on both cheeks, a scrape mark near her right eye, and dirty clothing.  She stated that both children were taken to Hopkins County Memorial Hospital. K.H.1 had impetigo, bite marks, and rashes on her legs, and both children suffered from diaper rash. Because she did not believe that K.H.1 could protect herself against her parents if they were fighting in the home, White placed the children with a maternal aunt.  Christina and Jeremy admitted to her that there had been four to six incidents of domestic violence between them in the past.  White stated that the Department had to place the children in foster care on July 29 because Christina had discussed removing her children from the maternal aunt’s home.  White also stated that, at the close of her investigation, the allegations of neglectful supervision were validated for both parents for domestic violence with the children present. However, the allegations of physical abuse of K.H.2 were “ruled out,” and allegations of physical abuse of K.H.1 were found “unable to determine” because the injury was alleged to have occurred before this incident.

            Christina stated that, during the June 11, 2003 incident, her sister pushed her, causing her to bump into K.H.1 and accidentally step on her after tripping over a toy.  Christina explained that the burns on L.H.’s arm were the result of either her or her mother’s ashes being flicked out of the car and hitting L.H. on the arm.  Shore testified that Christina would not take any responsibility for her children being in foster care.  Durham stated that neither parent took responsibility for the June 11, 2003 accident.

Any excuse for the acts or omissions of the parents

            Christina testified that she did not see K.H.1 from July 29 to September 11, 2003 and that K.H.2 was only eleven days old when she was removed.  Brooks admitted that increased hours of visitation between the parents and the children could improve the relationship between K.H.1 and Christina.  She stated that it would be difficult to attach to a newborn child if the parent only visited her in the Department’s office.  Brooks admitted that the lack of hours Christina and Jeremy spent with the children could cause problems with attachment.

            Durham, Mannon, and Watkins believed it was in the children’s best interest for the parents’ rights to be terminated.  Although there is conflicting testimony regarding Christina’s and Jeremy’s ability to care for the children financially, the jury could have disregarded Christina’s testimony that she would be able to babysit six additional children.  The jury could have also disregarded testimony that Christina and Jeremy could have bonded or attached if they spent more time with the children.  Although there was some disputed evidence, this evidence was not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that terminating Christina’s parental rights was in the best interest of K.H.1, K.H.2, and L.H. and that terminating Jeremy’s parental rights was in the best interest of K.H.2 and L.H.  See Tex. Fam. Code Ann. § 161.001(2).  Accordingly, that portion of Christina’s and Jeremy’s second issue regarding the children’s best interest is overruled.

Disposition

            Having overruled the two issues presented by Christina and Jeremy in this appeal, the judgment of the trial court is affirmed.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered November 8, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

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¹ We note that Jeremy’s name sometimes appears in the record as “Jermey.”

² The middle initials for the two older children are the same.  For purposes of distinguishing the two, we will refer to the older child as K.H.1 and the younger child as K.H.2.

³ On July 18, 2005, Michael signed an unrevoked or irrevocable affidavit of relinquishment of parental rights.  Accordingly, on July 19, the trial court ordered that the parent–child relationship between K.H.1 and Michael be terminated.  Michael is not party to this appeal.  In this opinion, we frequently refer to the “parents.” The “parents” are Christina and Jeremy, specifically Christina in relation to all three children and Jeremy in relation to the two younger children.

⁴ No family service plan was included in the clerk’s record or offered as evidence in the trial regarding L.H. Consequently, we do not discuss the termination of Christina’s and Jeremy’s parental rights to L.H. in this section.

⁵ Lisa LaFever had a bachelor’s degree in social work and sociology with an emphasis in criminology.  She worked for Family Focus, which had a contract with the Department to provide homemaking services for Christina and Jeremy.  She was assigned to work with them on nutrition and cooking, budgeting, stress management, home safety, time management, child development, behavioral management, parent-child relationships, and child care.

⁶ Under section 161.001, the Department was required to prove only one ground of termination under subsection (1).  Because we have held that there was legally and factually sufficient evidence to support the trial court’s findings under subsection (1)(O), we need not address the sufficiency of the evidence to support the trial court’s findings under subsections (1)(D) or (1)(E).

⁷ Under section 161.001, the Department was required to prove only one ground of termination under subsection (1).  Because we have found that there was legally and factually sufficient evidence to support the trial court’s findings under subsection (1)(E), we need not address the sufficiency of the evidence to support the trial court’s findings under subsections (1)(D) or (1)(O).

⁸ This incident was prior to L.H.’s birth.