In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-15-00079-CV ____________________
IN THE INTEREST OF O.R.W. ___________________________________________________________________
On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-220,185 ___________________________________________________________________
MEMORANDUM OPINION
The trial court terminated appellant A.F.’s parental rights to O.R.W. In this
accelerated appeal, appellant presents five issues challenging the legal and factual
sufficiency of the evidence and the timeliness of the trial court’s appointment of
appellant’s attorney. See Tex. Fam. Code Ann. § 263.405 (West 2014). We affirm
the trial court’s order of termination.
Background
The Texas Department of Protective and Regulatory Services (the
“Department”) first investigated appellant for allegations involving unsanitary
living conditions when she resided with her father. At that time, appellant had one
1 daughter, A.C. Appellant testified that she cleaned the home and the case was
closed. The Department subsequently became involved regarding allegations of
sexual abuse committed by appellant’s boyfriend, J.W., against A.C. The
Department removed A.C. from the home and appellant later gave birth to O.R.W.,
who is J.W.’s daughter.
Case worker Susanne Jones testified that, after O.R.W.’s birth, she visited
with appellant at appellant’s father’s home, which Jones described as smelling so
strongly of animal urine that it was difficult to breathe. Jones observed dirty cat
litter boxes, moldy holes in the ceiling, roaches in the home, rotten flooring, and
general filth. Jones also learned that the roof had leaked since 2005. Jones testified
that a child’s exposure to urine odors poses health risks to the child and that,
despite the Department’s previous warnings, appellant still brought O.R.W. into
that environment. Jones was also concerned because appellant struggled to
breastfeed O.R.W., but had little formula in the home and no money or services in
place to obtain formula. Appellant told Jones that she had no transportation to the
WIC office. Jones testified that appellant later obtained a breast pump from WIC
but no formula.
Jones expressed concern over appellant’s continued relationship with J.W.
and her failure to recognize the dangers of having a child with J.W. She testified
2 that appellant was told that having a sex offender in the home poses a danger to the
child, but that J.W. still lived in the home both before and after O.R.W.’s birth.
Appellant admitted continuing her relationship with J.W. after A.C. was removed
from her care, but she claimed that she had seen no evidence proving that J.W.
harmed A.C. Appellant testified that she no longer wanted a relationship with J.W.
and had ended her relationship with J.W. about a year before trial. She admitted
visiting J.W. in jail and sending him a letter in August 2014, in which she stated
she wished J.W. could see O.R.W. and which she signed “Always and forever,
your wife[.]”
Georgia Ann Williams, appellant’s counselor, testified that appellant
claimed that J.W. was bipolar and schizophrenic and sometimes hit walls or trees,
but would never hit a child. Williams testified that appellant minimized the dangers
posed by J.W.’s presence in the home and that even though A.C. had suffered from
the same sexually transmitted diseases as did J.W., appellant did not believe J.W.
had molested A.C. At trial, appellant claimed to no longer be communicating with
J.W. and to have no plans of reconnecting with him. Appellant promised to keep
O.R.W. away from J.W. for her protection.
Williams expressed concern regarding appellant’s lack of stability and she
noted that appellant lived in several places throughout the Department’s
3 investigation. According to the record, in September 2014, appellant pleaded guilty
to three counts of forgery. Appellant also admitted that between March 2014 and
January 2015, she had lived with her father, her sister, and her mother. She applied
for housing and, shortly before trial, she moved into an apartment with her
grandmother, who was staying with appellant temporarily. Appellant testified that
she has had a full-time job since November 2014 and had matured. Despite these
changes, Williams testified that she would not recommend that O.R.W. be returned
to appellant’s care. Caseworker Kirsten Bernard testified that appellant’s housing
was not independent, the apartment was not the appropriate size for two adults and
a child, and the housing could not be considered stable when appellant had lived
there for only two weeks. Bernard also did not believe that appellant’s employment
had been consistent enough to demonstrate an ability to support O.R.W.
Bernard testified that the plan for O.R.W. is relative adoption by her paternal
grandmother. Bernard testified that O.R.W. had lived with her grandmother since
May 2014, is cared for, appears happy, is bonded with her grandmother, and is in a
clean environment. She explained that O.R.W.’s grandmother had inquired about
ways to protect O.R.W. from J.W., stopped visiting J.W. in jail, stated that J.W.
was not welcome in her home, appeared to believe the allegations against J.W., and
Bernard believed O.R.W.’s grandmother intended to protect O.R.W. from J.W.
4 Bernard believed that O.R.W.’s grandmother would allow appellant to see O.R.W.,
which would be healthy for O.R.W.
Appellant testified that she loves O.R.W. and wanted O.R.W. to be returned
to her care. She testified that if she could not afford day care, her mother or a
friend would babysit O.R.W. at appellant’s apartment. Appellant acknowledged
that should her rights be terminated, she would be able to continue seeing O.R.W.
She agreed that having this option available was in O.R.W.’s best interest.
According to Williams, the changes appellant made resulted from the
Department’s involvement, rather than her own internal desire to change, and that
once the Department’s involvement ended, she believed appellant might return to
her old behavior. Williams did not believe that appellant possessed the maternal
instincts necessary to protect O.R.W. Jones testified that appellant had knowingly
placed O.R.W. in conditions or surroundings which endangered O.R.W. and
engaged in conduct and failed to engage in proper conduct which caused physical
and emotional danger to O.R.W. Bernard believed that O.R.W. was better off with
her grandmother than she would be with appellant. She opined that termination
was in O.R.W.’s best interest.
The trial court found that appellant: (1) knowingly placed or knowingly
allowed O.R.W. to remain in conditions or surroundings which endangered her
5 physical or emotional well-being; (2) engaged in conduct or knowingly placed
O.R.W. with persons who engaged in conduct which endangered her physical or
emotional well-being; and (3) failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of
O.R.W. The trial court found termination to be in O.R.W.’s best interest.
Legal and Factual Sufficiency
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-15-00079-CV ____________________
IN THE INTEREST OF O.R.W. ___________________________________________________________________
On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-220,185 ___________________________________________________________________
MEMORANDUM OPINION
The trial court terminated appellant A.F.’s parental rights to O.R.W. In this
accelerated appeal, appellant presents five issues challenging the legal and factual
sufficiency of the evidence and the timeliness of the trial court’s appointment of
appellant’s attorney. See Tex. Fam. Code Ann. § 263.405 (West 2014). We affirm
the trial court’s order of termination.
Background
The Texas Department of Protective and Regulatory Services (the
“Department”) first investigated appellant for allegations involving unsanitary
living conditions when she resided with her father. At that time, appellant had one
1 daughter, A.C. Appellant testified that she cleaned the home and the case was
closed. The Department subsequently became involved regarding allegations of
sexual abuse committed by appellant’s boyfriend, J.W., against A.C. The
Department removed A.C. from the home and appellant later gave birth to O.R.W.,
who is J.W.’s daughter.
Case worker Susanne Jones testified that, after O.R.W.’s birth, she visited
with appellant at appellant’s father’s home, which Jones described as smelling so
strongly of animal urine that it was difficult to breathe. Jones observed dirty cat
litter boxes, moldy holes in the ceiling, roaches in the home, rotten flooring, and
general filth. Jones also learned that the roof had leaked since 2005. Jones testified
that a child’s exposure to urine odors poses health risks to the child and that,
despite the Department’s previous warnings, appellant still brought O.R.W. into
that environment. Jones was also concerned because appellant struggled to
breastfeed O.R.W., but had little formula in the home and no money or services in
place to obtain formula. Appellant told Jones that she had no transportation to the
WIC office. Jones testified that appellant later obtained a breast pump from WIC
but no formula.
Jones expressed concern over appellant’s continued relationship with J.W.
and her failure to recognize the dangers of having a child with J.W. She testified
2 that appellant was told that having a sex offender in the home poses a danger to the
child, but that J.W. still lived in the home both before and after O.R.W.’s birth.
Appellant admitted continuing her relationship with J.W. after A.C. was removed
from her care, but she claimed that she had seen no evidence proving that J.W.
harmed A.C. Appellant testified that she no longer wanted a relationship with J.W.
and had ended her relationship with J.W. about a year before trial. She admitted
visiting J.W. in jail and sending him a letter in August 2014, in which she stated
she wished J.W. could see O.R.W. and which she signed “Always and forever,
your wife[.]”
Georgia Ann Williams, appellant’s counselor, testified that appellant
claimed that J.W. was bipolar and schizophrenic and sometimes hit walls or trees,
but would never hit a child. Williams testified that appellant minimized the dangers
posed by J.W.’s presence in the home and that even though A.C. had suffered from
the same sexually transmitted diseases as did J.W., appellant did not believe J.W.
had molested A.C. At trial, appellant claimed to no longer be communicating with
J.W. and to have no plans of reconnecting with him. Appellant promised to keep
O.R.W. away from J.W. for her protection.
Williams expressed concern regarding appellant’s lack of stability and she
noted that appellant lived in several places throughout the Department’s
3 investigation. According to the record, in September 2014, appellant pleaded guilty
to three counts of forgery. Appellant also admitted that between March 2014 and
January 2015, she had lived with her father, her sister, and her mother. She applied
for housing and, shortly before trial, she moved into an apartment with her
grandmother, who was staying with appellant temporarily. Appellant testified that
she has had a full-time job since November 2014 and had matured. Despite these
changes, Williams testified that she would not recommend that O.R.W. be returned
to appellant’s care. Caseworker Kirsten Bernard testified that appellant’s housing
was not independent, the apartment was not the appropriate size for two adults and
a child, and the housing could not be considered stable when appellant had lived
there for only two weeks. Bernard also did not believe that appellant’s employment
had been consistent enough to demonstrate an ability to support O.R.W.
Bernard testified that the plan for O.R.W. is relative adoption by her paternal
grandmother. Bernard testified that O.R.W. had lived with her grandmother since
May 2014, is cared for, appears happy, is bonded with her grandmother, and is in a
clean environment. She explained that O.R.W.’s grandmother had inquired about
ways to protect O.R.W. from J.W., stopped visiting J.W. in jail, stated that J.W.
was not welcome in her home, appeared to believe the allegations against J.W., and
Bernard believed O.R.W.’s grandmother intended to protect O.R.W. from J.W.
4 Bernard believed that O.R.W.’s grandmother would allow appellant to see O.R.W.,
which would be healthy for O.R.W.
Appellant testified that she loves O.R.W. and wanted O.R.W. to be returned
to her care. She testified that if she could not afford day care, her mother or a
friend would babysit O.R.W. at appellant’s apartment. Appellant acknowledged
that should her rights be terminated, she would be able to continue seeing O.R.W.
She agreed that having this option available was in O.R.W.’s best interest.
According to Williams, the changes appellant made resulted from the
Department’s involvement, rather than her own internal desire to change, and that
once the Department’s involvement ended, she believed appellant might return to
her old behavior. Williams did not believe that appellant possessed the maternal
instincts necessary to protect O.R.W. Jones testified that appellant had knowingly
placed O.R.W. in conditions or surroundings which endangered O.R.W. and
engaged in conduct and failed to engage in proper conduct which caused physical
and emotional danger to O.R.W. Bernard believed that O.R.W. was better off with
her grandmother than she would be with appellant. She opined that termination
was in O.R.W.’s best interest.
The trial court found that appellant: (1) knowingly placed or knowingly
allowed O.R.W. to remain in conditions or surroundings which endangered her
5 physical or emotional well-being; (2) engaged in conduct or knowingly placed
O.R.W. with persons who engaged in conduct which endangered her physical or
emotional well-being; and (3) failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of
O.R.W. The trial court found termination to be in O.R.W.’s best interest.
Legal and Factual Sufficiency
In issues one through four, appellant contends that the evidence is legally
and factually insufficient to support the trial court’s findings that (1) termination is
proper under Texas Family Code section 161.001(1)(D), (E), (O); and (2)
termination was in O.R.W.’s best interest. Tex. Fam. Code Ann. § 161.001(1)(D),
(E), (O), (2) (West 2014). Under legal sufficiency review, we review 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
finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could, and we disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible. Id. If no reasonable factfinder
could form a firm belief or conviction that the matter that must be proven is true,
the evidence is legally insufficient. Id.
6 Under factual sufficiency review, we must determine whether the evidence
is such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. We give due consideration to evidence
that the factfinder could reasonably have found to be clear and convincing. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding. Id. “If, in light of the
entire record, the 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, then the evidence is factually
insufficient.” Id.
The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “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 (West 2014); In the
Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the
parent committed one or more predicate acts or omissions and that termination is in
the child’s best interest. See Tex. Fam. Code Ann. § 161.001; see also J.L., 163
S.W.3d at 84. A judgment will be affirmed if any one of the grounds is legally and
factually sufficient and the best interest finding is also legally and factually
7 sufficient. In the Interest of C.A.C., No. 09-10-00477-CV, 2011 Tex. App. LEXIS
3385, at *2 (Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.).
Section 161.001(1)(D) allows for termination if the trial court finds by clear
and convincing evidence that the parent has “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §
161.001(1)(D). The “endangerment analysis focuses on the evidence of the child’s
physical environment, although the environment produced by the conduct of the
parents bears on the determination of whether the child’s surroundings threaten his
well-being.” Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied). The trial court may consider parental conduct both before
and after the child’s birth. Id. Regarding the children’s best interest, we consider a
non-exhaustive list of factors: (1) desires of the child; (2) emotional and physical
needs of the child now and in the future; (3) emotional and physical danger to the
child now and in the future; (4) parental abilities of the individuals seeking
custody; (5) programs available to assist these individuals to promote the best
interest of the child; (6) plans for the child by these individuals or by the agency
seeking custody; (7) stability of the home or proposed placement; (8) acts or
omissions of the parent which may indicate that the existing parent-child
8 relationship is not proper; and (9) any excuse for the acts or omissions of the
parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam.
Code. Ann. § 263.307(b) (West 2014).
A trial court may examine a parent’s history with other children when
considering the risks or threats of a parent’s environment. In the Interest of E.A.F.,
424 S.W.3d 742, 751 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). In this
case, the trial court heard evidence that, before O.R.W. was born, appellant (1)
exposed A.C. to an unsanitary home environment; and (2) remained in a
relationship with a man who was accused of sexually abusing A.C. The record
demonstrates that appellant resided in her father’s home, along with A.C., even
though the home was filthy and smelled of urine. Although appellant had been
warned about exposing a child to unsanitary living conditions, she nevertheless
exposed O.R.W. to such conditions. Even after O.R.W. was removed from her
care, appellant still resided with her father. “Unsanitary conditions can qualify as
surroundings that endanger a child.” In the Interest of C.L.C., 119 S.W.3d 382, 392
(Tex. App.—Tyler 2003, no pet.).
Additionally, “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.” In the Interest of J.T.G., 121 S.W.3d 117, 125
9 (Tex. App.—Fort Worth 2003, no pet.). The record indicates that appellant
minimized the sexual abuse allegations against J.W. even though A.C. suffered
from sexually transmitted diseases that J.W. also had. The trial court heard
testimony that appellant claimed A.C. developed chlamydia by exposure to a
chicken. The record also contains evidence suggesting that J.W. experiences
episodes that cause him to strike trees and walls. Even after A.C. was removed
from the home and the Department warned appellant of the dangers associated
with J.W.’s presence in the home, appellant continued her relationship with J.W.
The trial court was entitled to consider appellant’s disregard of the dangers posed
by her continued relationship with J.W. as evidence of endangerment. See Jordan,
325 S.W.3d at 721 (“[A] child is endangered when the environment creates a
potential for danger which the parent is aware of but disregards.”); see also J.T.G.,
121 S.W.3d at 125.
The trial court could also consider appellant’s conduct subjecting O.R.W. to
a life of uncertainty and instability. See In the Interest of M.R.J.M., 280 S.W.3d
494, 503 (Tex. App.—Fort Worth 2009, no pet.). The record demonstrates that
appellant lived in several locations in the months before trial. She obtained housing
only two weeks before trial, which Bernard testified is insufficient to show stable
independent housing. The trial court also heard Bernard’s testimony that
10 appellant’s one-bedroom apartment, which she shared with her grandmother, was
not suitable for two adults and a child. Nor did Bernard believe that appellant’s
employment history, consisting of irregular and short periods of employment, was
sufficient to establish her ability to support O.R.W. financially. Evidence of a
parent’s improved conduct, especially of short duration, does not conclusively
negate the probative value of a history of irresponsible choices. In the Interest of
J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). Additionally, evidence that appellant
had pleaded guilty to three forgery charges is relevant to whether she engaged in a
course of conduct that endangered O.R.W.’s well-being. See In the Interest of S.R.,
452 S.W.3d 351, 360-61 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
The trial court could reasonably conclude that appellant’s conduct created an
environment that endangers O.R.W.’s physical and emotional well-being and could
infer from her past endangering conduct that similar conduct would recur if
O.R.W. were returned to appellant. See M.R.J.M., 280 S.W.3d at 502; see also
J.T.G., 121 S.W.3d at 125. The trial court could reasonably have formed a firm
belief or conviction that appellant knowingly placed or knowingly allowed O.R.W.
to remain in conditions or surroundings which endangered her physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D).
11 Regarding the trial court’s best interest finding, the record indicates that
O.R.W. was too young to express her desires, but Bernard testified to the bonded
relationship and healthy environment that O.R.W. has with her grandmother. The
Department planned for O.R.W.’s adoption by her grandmother and the record
indicates that appellant would still be able to have a relationship with O.R.W. The
trial court heard evidence that appellant’s employment and living history and her
decisions to expose her child to both unsanitary living conditions and an accused
sex offender indicated an inability to meet O.R.W.’s emotional and physical needs
and to protect her from certain dangers.
“[T]he prompt and permanent placement of the child in a safe environment
is presumed to be in the child’s best interest.” Tex. Fam. Code Ann. § 263.307(a).
As the sole judge of the witnesses’ credibility and the weight to be given their
testimony, the trial could reasonably conclude that appellant was unable to provide
such an environment for O.R.W. The trial court could reasonably have formed a
firm belief or conviction that termination of appellant’s parental rights was in
O.R.W.’s best interest. See id. §§ 161.001(2), 263.307(b); see also J.F.C., 96
S.W.3d at 266; Holley, 544 S.W.2d at 371-72. Accordingly, we conclude that the
Department established, by clear and convincing evidence, that appellant
committed the predicate act enumerated in section 161.001(1)(D) and that
12 termination is in the child’s best interest. See Tex. Fam. Code Ann. § 161.001. We
overrule issues one and four and need not address issues two and three regarding
section 161.001(E) and (O). See C.A.C., 2011 Tex. App. LEXIS 3385, at *2; see
also Tex. R. App. P. 47.1.
Appointment of Counsel
In issue five, appellant maintains that the trial court untimely appointed an
attorney under section 107.013 of the Texas Family Code. In a termination suit,
“the court shall appoint an attorney ad litem to represent the interests of . . . an
indigent parent of the child who responds in opposition to the termination or
appointment[.]” Tex. Fam. Code Ann. § 107.013(a)(1) (West 2014).
The record does not indicate that appellant complained at trial that an
attorney had been untimely appointed. See Tex. R. App. P. 33.1(a); see also In the
Interest of K.P., No. 09-13-00404-CV, 2014 Tex. App. LEXIS 9263, at *36 n.3
(Tex. App.—Beaumont Aug. 21, 2014, no pet.) (mem. op.). Even had appellant
preserved her fifth issue, “the Legislature did not set forth any time frame or
procedure by which trial courts must appoint counsel.” In the Interest of M.J.M.L.,
31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet. denied). “The timing of
appointment of counsel to indigent parents appearing in opposition to termination
13 is a matter within the trial court’s discretion.” K.P., 2014 Tex. App. LEXIS 9263,
at *36 n.3.
Approximately two months before trial, the trial court appointed an attorney
for appellant, and appellant’s attorney told the trial court that she could represent
appellant. The record indicates that appellant had not previously requested
appointment of counsel or filed an affidavit of indigence, and, only after counsel
was appointed did appellant file an original answer opposing the Department’s
petition. Counsel sought a continuance of the final hearing, arguing in part that
appellant had “not been given adequate time to assist said attorney to prepare and
represent her in the trial for termination of her parental rights schedule[d] for
January 20, 2015.” The trial court granted the motion and rescheduled the hearing
for February 3, 2015. Under these circumstances, the record does not demonstrate
that the trial court abused its discretion by failing to appoint counsel earlier in the
case. See id.; see also M.J.M.L., 31 S.W.3d at 354. We overrule issue five and
affirm the trial court’s judgment.
AFFIRMED.
______________________________ STEVE McKEITHEN Chief Justice
14 Submitted on June 8, 2015 Opinion Delivered August 13, 2015
Before McKeithen, C.J., Kreger and Horton, JJ.