in the Interest of T.T.F., a Child
Opinion
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00382-CV
IN THE INTEREST OF T.T.F., A CHILD
------------
FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
OPINION ---------- I. Introduction
Appellant S.M. appeals the trial court‘s judgment terminating the parent-
child relationship between herself and her son, T.T.F. In four issues, S.M.
contends that she was denied due process of law and that the evidence is legally
and factually insufficient to support the trial court‘s judgment. We affirm.
II. Background
Child Protective Services (the Department) removed T.T.F. from S.M. for
the second time on March 5, 2008. The Department first removed T.T.F. in March 2007 and returned T.T.F. to S.M. in September 2007; T.T.F. was placed
with the same foster parents after each removal.
After a jury trial in September 2009, the jury found that S.M.‘s parental
rights to T.T.F. should be terminated, and the trial court found that S.M. had
engaged in at least one activity described in subsections (D) and (E) of family
code section 161.001(1) and that termination was in T.T.F.‘s best interest. 1 The
following witnesses testified at trial.
Dr. Leslie Hollis
Dr. Hollis is a board-certified pediatrician. She testified that she first saw
T.T.F. on March 6, 2008, the day after his removal, and that T.T.F. was thirteen
and one-half months old at the time. Dr. Hollis testified that T.T.F. was ―acutely
ill‖ but stable at the time. She said that T.T.F. had been diagnosed in February
2008 at the hospital with an ear infection, pneumonia, and RSV, which she
described as ―a common cold virus that can make kids wheeze.‖ T.T.F. had
been discharged from the hospital on breathing treatments to help open his
airways, and Dr. Hollis testified that she could not tell whether T.T.F. had been
given the breathing treatments at home. Because T.T.F.‘s foster mother reported
that he had not gained any weight since he was six months old, Dr. Hollis
testified that she put T.T.F. on concentrated formula and asked that he return
one week later to be weighed. Dr. Hollis testified that she made a working or
1 See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2010).
2 ―rule out‖ diagnosis of failure to thrive at the initial visit and that she requested
T.T.F.‘s past medical records because failure to thrive is a ―trend over time‖ that
cannot be diagnosed on a single visit or a single weight.
Dr. Hollis testified that failure to thrive is caused by a child not receiving
adequate calories for growth and that there are several reasons it occurs; it can
be caused by not receiving an appropriate amount of food or calories, by the
body not properly absorbing the calories given, or by a metabolic problem such
as a thyroid condition. She explained that failure to thrive is dangerous because
the majority of brain growth occurs in the first year of life and that failure to thrive
means that the body does not have adequate calories for muscle, bone, and
brain growth. She also testified that failure to thrive can cause a child to die.
Dr. Hollis testified that failure to thrive is usually diagnosed for any child
whose weight falls below the third percentile, meaning that if ―you line up a
hundred kids their age[,] . . . they [will] weigh more than three of them and . . .
less than 97 of them.‖ Dr. Hollis testified that failure to thrive is also commonly
diagnosed in children that fall from the fiftieth percentile at six months old to the
third percentile at nine months old. Dr. Hollis explained, ―When kids cross lines
like that, that‘s very concerning that they‘re not getting adequate calories for
bone and muscle growth or for brain growth.‖
Dr. Hollis testified that she determined T.T.F. was ―around the third
percentile,‖ even though he had been at the fiftieth percentile at birth and through
3 his first six months.2 T.T.F. was thirteen and one-half months old at his initial visit
with Dr. Hollis, and fully-clothed, he weighed nineteen pounds. One week after
the initial visit, without clothing and while living in foster care, T.T.F. weighed
eighteen pounds, four ounces.3 A week later, he weighed nineteen pounds
without clothing. Over time, T.T.F. gained weight and reached a point between
the tenth and twenty-fifth percentiles in July 2009.
Dr. Hollis testified that not getting enough nutrition is a non-organic cause
of failure to thrive. She testified that non-organic failure to thrive is diagnosed by
removing the child from the current living situation, providing the child with
adequate calories, tracking the number of calories taken in, and monitoring the
child‘s growth. She explained that children will typically grow very rapidly once
they are given concentrated calories. Dr. Hollis testified that, in her opinion,
T.T.F. had non-organic failure to thrive caused by his environment. Dr. Hollis
testified that she could not say if T.T.F.‘s failure to thrive was caused by not
getting enough food, not getting the appropriate type of food, or not being given
sufficient time to eat, but she agreed that all three relate to the nutrition T.T.F.
was given by S.M. And after being given the legal definition of endangerment,
Dr. Hollis testified that T.T.F.‘s failure to thrive meant that he had been
2 Dr. Hollis testified that T.T.F. was returned to S.M. after his first removal at about the time of his sixth month visit. 3 Dr. Hollis testified that the drop in T.T.F.‘s weight between the first and second visits was most likely attributable only to the difference between being clothed at the first visit and in only a dry diaper at the second visit.
4 endangered. She testified that T.T.F. was in danger of severe bodily injury or
death at the time she first saw him in March 2008. She also testified that she
considers it medical neglect for a child to lose weight or fail to gain sufficient
weight such that the child weighs the same at six months and one year. And
from treating T.T.F. and reviewing his records, Dr. Hollis testified that there is not
a ―normal‖ reason that T.T.F. would weigh the same at six months and one year.
Dr. Hollis testified that in addition to failure to thrive, T.T.F. had recurrent
ear and sinus infections and upper respiratory infections that quickly became ear
infections. Those occurred both before and during the first six months that she
treated him. She explained that untreated ear infections can cause hearing loss
and that children with five to six ear infections within one year are referred for
surgery to have tubes placed in the ears. T.T.F. had tubes placed in his ears and
has not had any ear infections after the procedure. Dr. Hollis testified that she
believes it is medical neglect for a person to allow a child to develop a significant
ear infection but not take the child to the doctor.
Dr. Hollis also testified that as of the time of trial, T.T.F. no longer had a
failure to thrive diagnosis and was between the tenth and twenty-fifth percentile
but that she could not know until much later if he would develop learning
disabilities or other deficiencies associated with poor brain growth. Dr. Hollis
testified that T.T.F. was ―a very healthy little boy‖ at the time of trial.
5 S.M.
S.M.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00382-CV
IN THE INTEREST OF T.T.F., A CHILD
------------
FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
OPINION ---------- I. Introduction
Appellant S.M. appeals the trial court‘s judgment terminating the parent-
child relationship between herself and her son, T.T.F. In four issues, S.M.
contends that she was denied due process of law and that the evidence is legally
and factually insufficient to support the trial court‘s judgment. We affirm.
II. Background
Child Protective Services (the Department) removed T.T.F. from S.M. for
the second time on March 5, 2008. The Department first removed T.T.F. in March 2007 and returned T.T.F. to S.M. in September 2007; T.T.F. was placed
with the same foster parents after each removal.
After a jury trial in September 2009, the jury found that S.M.‘s parental
rights to T.T.F. should be terminated, and the trial court found that S.M. had
engaged in at least one activity described in subsections (D) and (E) of family
code section 161.001(1) and that termination was in T.T.F.‘s best interest. 1 The
following witnesses testified at trial.
Dr. Leslie Hollis
Dr. Hollis is a board-certified pediatrician. She testified that she first saw
T.T.F. on March 6, 2008, the day after his removal, and that T.T.F. was thirteen
and one-half months old at the time. Dr. Hollis testified that T.T.F. was ―acutely
ill‖ but stable at the time. She said that T.T.F. had been diagnosed in February
2008 at the hospital with an ear infection, pneumonia, and RSV, which she
described as ―a common cold virus that can make kids wheeze.‖ T.T.F. had
been discharged from the hospital on breathing treatments to help open his
airways, and Dr. Hollis testified that she could not tell whether T.T.F. had been
given the breathing treatments at home. Because T.T.F.‘s foster mother reported
that he had not gained any weight since he was six months old, Dr. Hollis
testified that she put T.T.F. on concentrated formula and asked that he return
one week later to be weighed. Dr. Hollis testified that she made a working or
1 See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2010).
2 ―rule out‖ diagnosis of failure to thrive at the initial visit and that she requested
T.T.F.‘s past medical records because failure to thrive is a ―trend over time‖ that
cannot be diagnosed on a single visit or a single weight.
Dr. Hollis testified that failure to thrive is caused by a child not receiving
adequate calories for growth and that there are several reasons it occurs; it can
be caused by not receiving an appropriate amount of food or calories, by the
body not properly absorbing the calories given, or by a metabolic problem such
as a thyroid condition. She explained that failure to thrive is dangerous because
the majority of brain growth occurs in the first year of life and that failure to thrive
means that the body does not have adequate calories for muscle, bone, and
brain growth. She also testified that failure to thrive can cause a child to die.
Dr. Hollis testified that failure to thrive is usually diagnosed for any child
whose weight falls below the third percentile, meaning that if ―you line up a
hundred kids their age[,] . . . they [will] weigh more than three of them and . . .
less than 97 of them.‖ Dr. Hollis testified that failure to thrive is also commonly
diagnosed in children that fall from the fiftieth percentile at six months old to the
third percentile at nine months old. Dr. Hollis explained, ―When kids cross lines
like that, that‘s very concerning that they‘re not getting adequate calories for
bone and muscle growth or for brain growth.‖
Dr. Hollis testified that she determined T.T.F. was ―around the third
percentile,‖ even though he had been at the fiftieth percentile at birth and through
3 his first six months.2 T.T.F. was thirteen and one-half months old at his initial visit
with Dr. Hollis, and fully-clothed, he weighed nineteen pounds. One week after
the initial visit, without clothing and while living in foster care, T.T.F. weighed
eighteen pounds, four ounces.3 A week later, he weighed nineteen pounds
without clothing. Over time, T.T.F. gained weight and reached a point between
the tenth and twenty-fifth percentiles in July 2009.
Dr. Hollis testified that not getting enough nutrition is a non-organic cause
of failure to thrive. She testified that non-organic failure to thrive is diagnosed by
removing the child from the current living situation, providing the child with
adequate calories, tracking the number of calories taken in, and monitoring the
child‘s growth. She explained that children will typically grow very rapidly once
they are given concentrated calories. Dr. Hollis testified that, in her opinion,
T.T.F. had non-organic failure to thrive caused by his environment. Dr. Hollis
testified that she could not say if T.T.F.‘s failure to thrive was caused by not
getting enough food, not getting the appropriate type of food, or not being given
sufficient time to eat, but she agreed that all three relate to the nutrition T.T.F.
was given by S.M. And after being given the legal definition of endangerment,
Dr. Hollis testified that T.T.F.‘s failure to thrive meant that he had been
2 Dr. Hollis testified that T.T.F. was returned to S.M. after his first removal at about the time of his sixth month visit. 3 Dr. Hollis testified that the drop in T.T.F.‘s weight between the first and second visits was most likely attributable only to the difference between being clothed at the first visit and in only a dry diaper at the second visit.
4 endangered. She testified that T.T.F. was in danger of severe bodily injury or
death at the time she first saw him in March 2008. She also testified that she
considers it medical neglect for a child to lose weight or fail to gain sufficient
weight such that the child weighs the same at six months and one year. And
from treating T.T.F. and reviewing his records, Dr. Hollis testified that there is not
a ―normal‖ reason that T.T.F. would weigh the same at six months and one year.
Dr. Hollis testified that in addition to failure to thrive, T.T.F. had recurrent
ear and sinus infections and upper respiratory infections that quickly became ear
infections. Those occurred both before and during the first six months that she
treated him. She explained that untreated ear infections can cause hearing loss
and that children with five to six ear infections within one year are referred for
surgery to have tubes placed in the ears. T.T.F. had tubes placed in his ears and
has not had any ear infections after the procedure. Dr. Hollis testified that she
believes it is medical neglect for a person to allow a child to develop a significant
ear infection but not take the child to the doctor.
Dr. Hollis also testified that as of the time of trial, T.T.F. no longer had a
failure to thrive diagnosis and was between the tenth and twenty-fifth percentile
but that she could not know until much later if he would develop learning
disabilities or other deficiencies associated with poor brain growth. Dr. Hollis
testified that T.T.F. was ―a very healthy little boy‖ at the time of trial.
5 S.M.
S.M. testified that she has never been married, that she has six children,
and that T.T.F., born January 21, 2007, is the second-youngest. She also
testified that T.T.F.‘s father voluntarily relinquished his parental rights to T.T.F.
S.M. testified that the Department initially took custody of T.T.F. in March 2007
because she made ―a stupid decision‖ and tested positive for cocaine after
getting high. Her other four children were already in the Department‘s custody at
the time.4
S.M. testified that she has a large file with the Wichita Falls Police
Department because she has ―called the police on people a lot of times.‖ She
denied involvement in an aggravated robbery for which she was arrested and
testified that the aggravated robbery charge was dismissed after investigators
conducted DNA testing. However, S.M. admitted stating in a psychological
evaluation that she has had problems with family violence and aggravated
assault, and S.M. acknowledged that some of the incidents occurred in the
presence of her children.5 S.M. agreed that children should not be exposed to
aggravated assault or family violence, but she said, ―[T]hat‘s my past.‖
S.M. testified that in the ten years before trial—she was twenty-nine at the
time of trial—she had only supported herself in the previous four months. She
4 S.M.‘s sixth child, G.J.M.B., was not born until November 2008. 5 S.M. admitted that she had physical altercations with her friend T‘Neal, her mother, and the fathers of her children.
6 testified that she worked at Whataburger in 2006 but ―that was only like two days,
so that don‘t even count.‖ Otherwise, S.M. had not been employed; she lived on
the child support payments made by her children‘s fathers. S.M. testified that
she had applied to work at McDonald‘s, Subway, Sonic, and ―everywhere‖ but
that she could not find a job because of the aggravated robbery on her record.
However, she also testified that the last time she applied for a job was before
November 2008, more than ten months before trial. She said that she had not
obtained her G.E.D. because she had no one to watch her youngest child while
she pursued a G.E.D. S.M. also testified that Social Security has deemed her
unable to work and that she receives disability payments as a result.
S.M. testified that she first became involved with the Department in May
2002 because she fainted after smoking marijuana. She admitted that her oldest
child, J.K.P., was a little boy at the time and that he was with her when she
fainted. S.M. also testified that in December 2005, she left her four children,
J.K.P., J.G.P.K., T.M.J., and D.J.F., with a friend‘s neighbor while she went to
Wal-Mart; the neighbor‘s first name was Dorothy, but S.M. did not know
Dorothy‘s last name. S.M. testified that while she was gone, D.J.F. stopped
breathing, someone called 9-1-1, and D.J.F. was taken to the hospital. S.M.
testified that she subsequently learned that Dorothy was mentally ill; S.M. said
that she ―felt so stupid‖ for leaving her children with an inappropriate caregiver
she did not know.
7 Beginning in August 2007, S.M.‘s children were returned to her, but the
Department maintained legal custody of her children. However, S.M. testified
that she moved about seven times between August 2007 and March 2008 and
that she knew that she was supposed to tell the Department where she was
living, but she did not tell the Department each time that she moved. She did
say, however, that caseworker Tammy Durham visited her regularly during that
time and almost always knew where she was. S.M. testified that she was
effectively homeless during this period; she was not on the street, but she moved
from house to house without paying rent. She testified that she had just been
released from jail but that the aggravated robbery arrest was still on her record,
so she could not get a job. S.M. testified that she did not want to live that way
and that she was doing the best she could under the circumstances.
S.M. testified that her food stamps lapsed in October 2007 and that she
had not reinstated them by March 2008. She said that the Department provided
her with food, clothes, and sleeping bags ―a lot‖ of times during this period. S.M.
also testified that her Medicaid lapsed in October 2007 and that she did not take
her children to the hospital or doctor between October 2007 and March 2008
other than to take T.T.F. to the hospital in February 2008. S.M. testified that she
was ―irresponsible‖ for allowing her Medicaid and food stamps to lapse and that it
hurt her ability to provide food for her children. S.M. also testified that T.T.F. was
late in receiving his immunizations because she had allowed her Medicaid to
lapse.
8 S.M. testified that she took T.T.F. to the hospital in February 2008 because
he was sick. She said that she fed T.T.F., but she admitted that she had noticed
that T.T.F. was not getting any bigger and that she did not take him to the
hospital to determine if there was a problem. S.M. testified that she decided to
take T.T.F. to the hospital because he was not acting normally; he was just lying
around and not crawling, bouncing up and down, or babbling as he would
normally do. She said that T.T.F. had pneumonia and an ear infection, that he
was in the hospital for three days and that the hospital released him with a
prescription for infections, but no one mentioned his weight or a need to change
his formula intake. S.M. would not agree that T.T.F. had actually suffered from
failure to thrive, stating that she wanted a second opinion on the matter.
S.M. testified that she was living in a home on Cleveland Street with her
children and her friend, T‘Neal, in early March 2008 and that her caseworker,
Durham told her to clean up the house they were living in. S.M. testified that she
had called Durham, the morning that she moved in to give her the address and
that Durham came to the house that morning and took pictures. S.M. agreed that
the house needed to be cleaned, but she testified that she did not have
anywhere else to go. She agreed that there were boards with exposed nails in
the dining room and that dirt covered some of the floors. S.M. said that Durham
told her she would return the next day, that she instead returned the same day
without giving her time to clean the house, and that Durham removed the
children when she returned. S.M. testified that the police accompanied Durham
9 at the removal because she had previously told Durham that she would ―have a
fight on her hands‖ if she tried to remove her children.
S.M. testified that Linda Johnson is her current caseworker. S.M. admitted
to yelling at Johnson and hanging up on Johnson many times, most recently
within two months of trial. S.M. also admitted that she slammed a door at the
visitation center, but she denied breaking the door. S.M. also denied that the
Department‘s refusal to provide her with transportation is related to any threats
she made to Department employees. S.M. did say, however, that she gets
emotional and has yelled ―a couple of times‖ when she was crying.
S.M. testified that she attended and completed parenting classes and
counseling through the Christian Women‘s Job Corps after her children were
removed in March 2008. She also said that she prepared written budgets with
Johnson and obtained social security benefits to comply with the court‘s order
that she obtain a legal source of income.6
S.M. testified that she found a permanent place to live for the first time
when she moved to the mission; she was pregnant with her youngest child,
G.J.M.B., at the time. She also testified that the Department was granted a non-
6 S.M. testified that she qualified for disability payments because of a ―personality disorder, a learning disability.‖ She said that she has been told that she is ―borderline intellectual functioning,‖ which means that it is difficult for her to understand sophisticated needs like the needs of a child. S.M. also testified that she takes Depakote, a bipolar mood stabilizer, and Cymbalta, an antidepressant.
10 emergency removal of G.J.M.B. and appointed as G.J.M.B.‘s managing
conservator but that the court ordered the Department to return G.J.M.B. to her.
S.M. testified that she met several people at the mission who helped her
with her pregnancy, her physical needs, and her spiritual needs, and they
provided her with a home. After G.J.M.B. was born, the mission provided S.M.
with a private family room in which S.M. and G.J.M.B. did not have other
roommates. S.M. continued to live at the mission with G.J.M.B. for
approximately six months, and the mission provided S.M. with shelter, a baby
bed, diapers, baby wipes, and most of G.J.M.B.‘s clothes. S.M. testified that she
was told that she could stay at the mission as long as she needed to and that she
stayed at the mission until the summer of 2009. She also testified that the
Department again tried to remove G.J.M.B. when she moved into her current
house but that the court dismissed the case and allowed her to live at the new
house with G.J.M.B.
S.M. testified that she learned age-appropriate discipline techniques for
her children in parenting classes. She said that she has shown more patience
with her children during visitations and has, as required by her service plan,
avoided outbursts.7 S.M. also testified that her service plan required her to stay
drug-free and that her last positive drug test was in 2007 when T.T.F. was
approximately three months old. She testified that she is not drug-tested
7 S.M. testified that she never yelled at her children during visitations and said that this requirement of her service plan was a ―precaution.‖
11 anymore and that she no longer uses drugs. She also testified that she had, as
required, allowed announced and unannounced home visits and that she had
maintained housing that is clean, safe, and free of any hazards. Her service plan
also required her to maintain a pattern of stability for at least four months, and
she testified that she had been in the same house for almost four months.
S.M. additionally testified that she has remained current with her different
government programs and that she has done so since G.J.M.B. was born. She
also testified that her doctor told her that G.J.M.B. does not have any
developmental difficulties and that G.J.M.B. is healthy and growing.
S.M. testified that she has visitation with her children for one hour each
Thursday, that she looks forward to the visitations, and that she has not missed
any visitations. S.M. testified that J.K.P. and D.J.F. are angry with her; she said
that D.J.F. does not really know her. S.M. also testified about the ages and
status of custody of each of her children as of the time of trial. J.K.P is ten years
old, and the Department is J.K.P.‘s permanent managing conservator. J.G.K.P.
is six years old, and the Department is J.G.K.P.‘s temporary managing
conservator. T.M.J. is five years old, and the Department is T.M.J.‘s permanent
managing conservator. D.J.F. is three years old, and the Department is D.J.F.‘s
permanent managing conservator. G.J.M.B. is ten months old, and S.M. has full
legal custody of G.J.M.B.
S.M. testified that the Department had requested, and she had agreed,
that the Department should be the permanent managing conservator of J.K.P.,
12 T.M.J., and D.J.F. She testified that it was a difficult decision, that she was still
homeless at the time, that she could not provide a stable home for her children at
the time, and that she ―did what was best for [her] kids.‖ S.M. testified that she
loves all of her children ―very dearly,‖ that she hopes her children can forgive her,
that she wants all of them back, and that she wants to go to family counseling
with all of them.
S.M. testified that the court ordered her to follow through on her application
for disability payments, and she said that she received a lump sum payment in
excess of $2,000 and monthly payments of $675 that began in June 2009. S.M.
used the money to find a place to stay. S.M. testified that she pays $500 per
month in rent and that all of her bills are paid. The remaining $175 per month
goes to pay for her cell phone and to purchase diapers, baby wipes, and
toiletries; she purchases food with food stamps. S.M. testified that she has
looked into moving to the Housing Authority and that she only needs G.J.M.B.‘s
social security card before she can move there. She testified that she could stay
in her current house but that the Housing Authority will be a much lower rental
amount.
S.M. testified that she wants to get T.T.F. back. She testified that as of the
time of trial she lives in a one-bedroom apartment and that she does not have a
baby bed for nine-month-old G.J.M.B., who sleeps in the bed with her, but that
she will buy a bed for T.T.F. However, when asked how she could purchase a
bed for T.T.F., S.M. stated, ―I got God on my side and all of that will work out.‖
13 She testified that she will walk or take the bus to deliver T.T.F. to his medical
appointments and that she will pay for his medication and food using Medicaid
and food stamps.
Tammy Durham
Durham testified that she first became S.M.‘s caseworker in February
2007.8 Durham testified that the Department decided in August or September
2007 to return S.M.‘s children to her; the Department maintained custody of the
children but planned to transition one or two children back to S.M. at a time. 9
S.M. was living with her mother at the time, and Durham visited the house
weekly; there was food in the home, and the children seemed to be adequately
cared for.
Durham testified that she first began having reservations about S.M.‘s
instability—moving from place to place and not having food for her children—in
October 2007. Durham said that she conducted house visits near the time and
that the home was normally calm in the mornings but that the children were
rambunctious in the afternoons. Durham testified that S.M. yelled and screamed
at her children several times and that she spoke to S.M. about it. Durham said
8 T.T.F. was born in January 2007, and all of S.M.‘s other children were already in the Department‘s custody at the time. T.T.F. was removed for the first time in March 2007. 9 Durham testified that the Department placed the three oldest children with S.M. in August 2007 and placed the two youngest with S.M. near the end of September 2007.
14 that she asked for removal during the fall of 2007 but that her supervisors said
that not enough had occurred to warrant removal.10 Her concerns were
alleviated in January 2008 when S.M. moved into a house on Gerald Street with
G.J.M.B.‘s father, G.B. Durham testified that she became concerned again,
however, when S.M. moved again at the end of January 2008.
Durham testified that she had numerous conversations with S.M. about the
need to become self-sufficient and to provide her children with basic necessities.
However, Durham testified that S.M.‘s attitude was that it was the Department‘s
responsibility to make sure that the children had basic necessities. Durham
testified that the Department provided S.M. with food, car seats, playpens,
diapers, formula, clothes, beds, sleeping bags, pillows, school uniforms, and
school supplies. She said that the Department also provided transportation to
S.M. on numerous occasions, including transportation to visitations, to enroll
J.K.P. in school, to take J.K.P. to school, to get Social Security cards, and to
doctor‘s appointments, but according to Durham, the Department stopped
providing S.M. with transportation after S.M. threatened her.11
Durham also testified about the house on Cleveland Street where S.M.
lived in March 2008. She testified that she first visited the house on March 4 and
10 On cross-examination, Durham acknowledged that her supervisors‘ refusal to agree to removal indicated that the circumstances were satisfactory at the time. 11 However, the Department then began providing bus passes to S.M.
15 that she discussed the problems with the house with S.M. on March 4 and told
her that the house had to be cleaned. Durham testified that she saw rat feces
(not clumps of dirt) on the floor, feces on the door, boards with exposed nails,
and rotten chicken on the counter; she said that the kids appeared to have not
been bathed and smelled ―very unclean.‖12 Durham testified that when she
returned on March 5, some things in the house had been cleaned—the majority
of the rat feces was gone—but feces on the door, nails in boards in the living
room, general clutter in the house, and rotting food on the counter remained.
Durham testified that the Cleveland Street house was an ―endangering
surrounding‖ for T.T.F.13
Durham said that the children were removed the evening of March 5. She
had police attend the removal because S.M. had threatened her in the past, and
she testified that although S.M. did not physically fight her, S.M. screamed at her
from the porch and threatened to ―come out and shoot‖ her. Durham
acknowledged that S.M. brought the children to her from the house after the
police diffused the situation. However, Durham also testified that S.M. left a
voicemail for her the day after the removal threatening to ―make her pay.‖
12 S.M. denied that feces were smeared on a door and wall, that rat feces were on the floor, that her children were dirty, and that they smelled unclean. 13 Dr. Hollis testified that she considers it endangerment for T.T.F. to have been in conditions with rat feces on the floor, boards with exposed nails, floors covered with dirt, doors smeared with feces, and rotten food on counter tops.
16 Durham testified that she learned of T.T.F.‘s failure to thrive diagnosis the
day after the removal when T.T.F.‘s foster parents took him to visit Dr. Hollis.
Durham testified that she spoke with S.M. about the failure to thrive diagnosis but
that S.M. screamed at her; Durham said that S.M. would not allow her to discuss
what might have caused T.T.F.‘s condition and that S.M. did not seem to
comprehend the dangers of a failure to thrive diagnosis.
Durham testified that Johnson became S.M.‘s caseworker shortly after
S.M. threatened her. On cross-examination, Durham acknowledged that she
might yell at someone if he or she took away her own children, that it would be
an upsetting situation, and that S.M. apologized to her three or four months later.
Durham also testified that S.M. had not assaulted her or any Department workers
and that she was not aware of any allegations of S.M. physically abusing her
children.
Durham testified that S.M. was drug-tested while she was S.M.‘s
caseworker; S.M. had a positive test shortly after T.T.F.‘s birth and another
positive test in October 2007. Durham testified that she did not learn about the
October 2007 positive test result until much later and that she would have had
the children removed had she learned about it in a timely manner. However,
Durham acknowledged that drugs have not been ―an everyday problem‖ for S.M.
Durham also testified that S.M.‘s current situation is better than it was when
T.T.F. was removed in March 2008.
17 Linda Johnson
Johnson testified that she became S.M.‘s caseworker in March or April
2008. Johnson said that S.M. does not often miss visitations but that if she does,
she wants to schedule a makeup visitation. Johnson testified that she has
observed a lot of S.M.‘s visitations with her children and that S.M. has had
outbursts with her children that are more than ―stern talking.‖ Johnson
acknowledged that S.M. has progressed in this area and that S.M. does not yell
directly at her children like she used to do, but Johnson said that S.M. still yells at
Department staff when she does not get what she wants.
Johnson also testified that she has seen J.K.P. and D.J.F. leave the room
during visitations and wander the hall or go into other visitation rooms. Johnson
said that she does not think that either J.K.P. or D.J.F. have ever remained in the
visitation room for the entire hour of visitation. Johnson also testified that J.K.P.
takes care of T.T.F. if T.T.F. becomes upset during the visitations while S.M. sits
on the couch. Johnson additionally testified that T.T.F. sometimes has
―meltdowns‖ and does not want to go to visitation. But Johnson admitted that
she has witnessed T.T.F. run to his mother at visitation and tell her that he loves
her.
Johnson testified that she visited S.M. at the mission after G.J.M.B.‘s birth.
Johnson agreed that the mission provided for S.M.‘s and G.J.M.B.‘s needs but
said that permanency was the problem. Johnson also testified that she has seen
S.M. with G.J.M.B., that G.J.M.B. has bonded with S.M., that S.M. ―appear[ed] to
18 be a good mother‖ to G.J.M.B., and that, at the time of trial, G.J.M.B. was doing
well. Johnson also agreed that S.M.‘s current house was adequate, that the
refrigerator and cabinets were stocked with food, and that S.M. had adequately
furnished the house. Johnson conceded that S.M.‘s situation was better at the
time of trial than in March 2008 and that, at the time of trial, S.M. had her own
lease and was paying her own bills.
Johnson testified that she has had conversations with S.M. about the need
to become self-sufficient. Johnson said that S.M. told her she could not get a job
because of the aggravated robbery charge, but Johnson also said that she is
aware of other parents with criminal histories who have been able to find
employment. Nevertheless, Johnson agreed that it would probably be ―a black
mark to an employer‖ if you disclose that you have been arrested for aggravated
robbery. Johnson also testified that she told S.M. about the Helen Farabee
Center and that the Center works with people who are on disability to find
minimal employment so that they do not lose their disability benefits; she testified
that a person referred to the Center is likely to be placed in a job. Johnson
testified that S.M. said she would take advantage of the Center‘s program but
that S.M. did not show up for her appointment. Johnson testified that S.M.
became involved with Christian Women‘s Job Corps after May 2008 and that she
sometimes saw improvement in S.M.‘s attitude after that time, but Johnson
testified that the improvement did not last long.
19 Johnson testified that T.T.F.‘s foster parents have expressed a desire to
adopt him. The foster parents have one grown daughter and two other
daughters living in their home, and their children interact with T.T.F. Johnson
said that the foster parents treat T.T.F. as one of their own children and that they
do not treat T.T.F. differently than their own children. J.K.P. is also living with the
same foster parents. Johnson testified that the placement has been ―really,
really positive‖ and that T.T.F. was ―very happy and bouncing around because
[J.K.P.] came to live at the same home.‖14 Johnson testified that the foster
parents‘ home is stable and appropriate.
Johnson testified that, if S.M.‘s rights are terminated, the Department plans
to have T.T.F. tested for any problems caused by his failure to thrive. However,
she said that, as of the time of trial, T.T.F. ―looks great‖ and that there is nothing
physically wrong with him. T.T.F. initially had speech problems, but is now
talking well after speech therapy. T.T.F. has also had behavioral therapy for
problems with outbursts, partly based on Dr. Hollis‘s observations about
―intermittent explosive disorder,‖ but Johnson said that it is too early to make any
diagnosis.
Johnson testified that S.M. has only had a stable home for less than four
months out of her eleven years as an adult. Johnson testified that S.M. is doing
better but that her period of stability does not change the danger that T.T.F. was
14 The record does not reflect whether there is a plan to keep J.K.P. with T.T.F.
20 in while in S.M.‘s care, such as failure to thrive and dangerous living conditions.
Johnson testified that it would not be in T.T.F.‘s best interest for S.M. to be his
managing conservator. She also testified that it would be in T.T.F.‘s best interest
if S.M.‘s rights were terminated.
Timothy Veal
Timothy Veal is a licensed minister and is the program director at Faith
Mission. Veal testified that S.M. was pregnant when she first moved to the
mission and that she gave birth to G.J.M.B. during the time she lived at the
mission. Veal testified that S.M. followed the mission‘s rules while she was
there, that she was not asked to leave, that she was ―very diligent‖ in taking care
of G.J.M.B., and that she was a nurturing, good mother to the child. Veal also
testified that S.M.‘s current situation is an improvement over her life at the
mission.
Patrick Barber
Patrick Barber is a Department investigator who investigates reports to
determine if children are safe. Barber has investigated ―a couple‖ of cases
involving S.M., the most recent of which concerned G.J.M.B. The hospital staff
knew about S.M.‘s history with the Department, and it concerned them enough
that they called the Department once G.J.M.B. was born. In response, Barber
visited S.M. at the hospital and talked with her about the Department‘s concerns
and possible placement of G.J.M.B. with a relative. Barber also testified that he
observed S.M. with G.J.M.B. and that she seemed to be doing okay with
21 G.J.M.B. Barber visited with S.M. about a week later at the mission and
observed that the mission was a safe environment for G.J.M.B. Barber testified
that he did not believe that G.J.M.B. was in immediate danger and that he did not
believe removal was warranted at that time.
Mauri Reed
Mauri Reed serves as a court-appointed special advocate (CASA). She is
the advocate for T.T.F. and J.K.P., and she previously served as the advocate for
G.J.M.B. Reed testified that she has a bachelor‘s degree in social work with a
specialty in child development and that she is certified as an advocate through
Texas CASA. Reed stated that when a child is removed from their parent, the
child is given an advocate or a guardian ad litem. Reed testified that the
advocate will not always agree with the Department about the child‘s best
interests but that an advocate‘s goal is to determine what is best for the child.
Reed testified that termination is in T.T.F.‘s best interest and that appointing the
Department as T.T.F.‘s permanent managing conservator is not in T.T.F.‘s best
interest.
Reed testified that she has observed S.M.‘s visitations with her children.
She has observed that S.M. loves her children, that the children are reluctant to
go to visitation at times, that the children run in and out of the visitation room, that
the children interact and play with one another, that one child rarely stays in the
room, that S.M. and the children read books, and that visitation is at times
chaotic.
22 Reed testified that when T.T.F. returned to his foster parents in March
2008, he was hesitant of strangers, he cowered over his food, and he had
different attributes than the ―happy-go-lucky,‖ thriving child that left the foster
parents‘ home six months earlier. In contrast, Reed testified that by the time of
trial, T.T.F. was very attached to his foster mother and that he loves his foster
father as well. She testified that T.T.F. feels safe with the foster parents and that
he has bonded with them. Reed stated that since J.K.P. lives with T.T.F. and his
foster parents now, J.K.P. reads books to T.T.F., and the bond between J.K.P.
and T.T.F. has strengthened. Reed also said that T.T.F. has a regimented ritual
in the evenings near bedtime.
Reed testified that the foster parents would like to adopt T.T.F. She stated
that the foster parents adore T.T.F., that T.T.F. has made their home complete,
that they love him dearly after having kept him for so long, that they know the
things he struggles with, and that his foster mother has learned very well to calm
him down and manage his angry outbursts. She also said that T.T.F. is learning
the words necessary to express himself and to say why he is mad. Reed
described T.T.F.‘s foster mother as observant and very willing to get T.T.F. the
help that he needs. She testified that T.T.F.‘s foster mother tends to his medical
needs, that she would be attentive to any medical emergency that he might
experience, that she helped him regain his health after he was diagnosed as
failure to thrive, and that she has done an excellent job with T.T.F.
23 III. Due Process
In her first issue, S.M. contends that the trial court and the Department
violated her procedural due process rights in eight ways.
A. Retention of Suit on Docket for Extraordinary Circumstances
S.M. argues that her due process rights were violated because the trial
court did not conduct a hearing before retaining the case on the docket beyond
the initial one-year dismissal date. The Department responds that family code
section 263.401 does not require the trial court to conduct a hearing before
retaining a case on the docket for extraordinary circumstances.
In relevant part, family code section 263.401 states:
(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.
(b) Unless the court has commenced the trial on the merits, the court may not retain the suit on the court‘s docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.
Tex. Family Code Ann. § 263.401(a), (b) (Vernon 2008).
We strictly construe statutes concerning involuntary termination of parental
rights in favor of parents. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re
24 A.V., 849 S.W.2d 393, 400 (Tex. App.—Fort Worth 1993, no writ). Our primary
objective in construing a statute, however, is to determine and give effect to the
legislature‘s intent. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999). In
determining the legislature‘s intent, we look first to the statute‘s plain and
common meaning and presume that the legislature intended the plain meaning of
its words. Fleming Foods v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999). We also
presume that the legislature chose its words carefully, recognizing that every
word in a statute was included for some purpose and that every word excluded
was omitted for a purpose. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San
Antonio 2000, pet. denied); Renaissance Park v. Davila, 27 S.W.3d 252, 256
(Tex. App.—Austin 2000, no pet.).
S.M. argues that the trial court violated her procedural due process rights
by not conducting a hearing before granting an extension for extraordinary
circumstances, but the plain language of section 263.401 does not require the
trial court to conduct a hearing before granting an extension. See Tex. Fam.
Code Ann. § 263.401(a), (b). Thus, we must presume that the legislature did not
intend to require a hearing before the trial court retains a case on its docket
pursuant to section 263.401(b). See id. § 263.401(b); M.J.M.L., 31 S.W.3d at
354; Renaissance Park, 27 S.W.3d at 256. Moreover, we note that this court has
previously held that section 263.401(b) does not require a written extension order
and that an oral rendition is sufficient. See In re J.L.C., 194 S.W.3d 667, 672
(Tex. App.—Fort Worth 2006, no pet.). Finally, we note that the trial court signed
25 the order retaining the case on the docket on March 30, 2009, that the trial court
conducted a permanency hearing the same day, and that the trial court‘s
permanency hearing order reflects that S.M. and her counsel attended the
permanency hearing in person. We hold that the trial court did not violate S.M.‘s
procedural due process rights by not conducting a hearing before retaining the
case on the docket beyond the one-year dismissal date.
S.M. also argues that the trial court denied her procedural due process
rights by retaining the case on the docket beyond the initial dismissal date
because extraordinary circumstances did not exist to justify the retention. The
trial court found that extraordinary circumstances justified retention because it
could not set the case for a jury trial until a date beyond the one-year dismissal
date.
The one-year dismissal date in this case was April 6, 2009. The case was
originally set for trial on February 10, 2009, but the Department filed a motion for
continuance on February 3, 2009, asking that the case be set for a jury trial. The
Department‘s motion asked that the case be set for trial no later than the one-
year dismissal date, and S.M. did not oppose the Department‘s motion. On
February 5, 2009, the trial court granted the Department‘s motion but set the
case for a jury trial to begin on June 9, 2009, a date beyond the one-year
dismissal date. Then, on the day of the March 30, 2009 permanency hearing,
the trial court signed an order retaining the case on the docket beyond the one-
year dismissal date. The trial court‘s order included a finding of extraordinary
26 circumstances and stated, ―An order to retain the case on the Court‘s docket
should be granted for the reason that the Court could not set the jury until June
2009 which is after the one year dismissal date.‖
―Because an extension of the dismissal date is similar to a continuance
and because section 263.401(b) does not indicate which appellate standard of
review to apply, we apply the abuse of discretion standard.‖ In re D.W., 249
S.W.3d 625, 647 (Tex. App.—Fort Worth 2008, pet. denied) (citing In re J.A., No.
02-05-00454-CV, 2006 WL 3114434, at *9 (Tex. App.—Fort Worth 2006, no pet.)
(mem. op.)). To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot
conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
Here, the Department requested that the case be continued from the
original February 10, 2009 trial setting so that it could be tried before a jury, and
S.M. did not oppose the Department‘s motion. The trial court granted the
unopposed motion for continuance but found that the case could not be set for a
27 jury trial until June 2009, beyond the one-year dismissal date.15 First, S.M. does
not argue or cite to any portion of the record to suggest that the trial court had
another available date for a jury trial before the one-year dismissal date. Thus,
we cannot conclude that the trial court acted arbitrarily or capriciously. Second,
S.M. does not argue that she was harmed by the trial court‘s retention of the
case beyond the one-year dismissal date. Indeed, the delay permitted S.M. to
present evidence to the jury that she had maintained a stable home in the four
months before trial, evidence that she could not have presented to the jury before
the April 6, 2009 one-year dismissal date. See Melton v. Tex. Dep’t of Family &
Protective Servs., No. 03-08-00168-CV, 2010 WL 668917, at *2 (Tex. App.—
Austin Feb. 25, 2010, no pet.) (mem. op.) (holding that the appellant failed to
establish harm from the trial court‘s failure to dismiss the suit within the one-year
deadline). Thus, we hold that the trial court did not abuse its discretion by
retaining the case on its docket beyond the initial one-year dismissal date. We
overrule this portion of S.M.‘s first issue.
B. Not Reducing Temporary Order to Writing Following Adversary Hearing
S.M. also argues that the trial court violated her procedural due process
rights by failing to issue a written temporary order following the April 24, 2008
adversary hearing. Specifically, S.M. contends that the order rendered orally by
15 The trial actually commenced in September 2009 after S.M. moved to continue the June 2009 trial setting and objected to an August 2009 trial before an associate judge.
28 the trial court at the conclusion of the April 24, 2008 adversary hearing ―did not
set out the terms and conditions by which [she and T.T.F.‘s father] were to obtain
return of the child.‖
Family code section 262.201(a) requires the trial court to conduct a full
adversary hearing no later than fourteen days after the governmental entity takes
possession of the child. Tex. Fam. Code Ann. § 262.201(a) (Vernon Supp.
2010). Section 262.201(b)(1) requires the trial court to order the child returned
unless the court finds sufficient evidence of (1) a danger to the child‘s physical
health or safety that ―was caused by an act or failure to act of the person entitled
to possession‖ and that ―for the child to remain in the home is contrary to the
welfare of the child.‖ Id. § 262.201(b). In this case, S.M.‘s counsel stipulated at
the April 24, 2008 adversary hearing ―that there is a danger to the physical health
and welfare to the child caused by the party in possession‘s failure to act.‖
S.M.‘s complaint is that the trial court did not issue a written order setting
forth the terms and conditions under which she could regain possession of T.T.F.
But section 262.201 did not require the trial court to issue an order following the
adversary hearing that sets forth the terms and conditions under which she could
regain possession of the child. See generally id. § 262.201(a)–(g). Therefore,
we hold that the trial court did not violate S.M.‘s procedural due process rights by
failing to issue a written order setting forth the terms and conditions under which
S.M. could regain possession of T.T.F. We overrule this part of S.M.‘s first issue.
29 C. Separate Trials
S.M. next contends that the trial court consolidated this case with a
different case involving another of her children but denied her right to procedural
due process by subsequently conducting separate trials. She argues that her
rights were prejudiced by the trial court‘s failure to conduct a single trial. The
Department argues that the two cases were never actually consolidated, but we
assume without deciding that the two cases were consolidated and subsequently
severed.
A severance splits a single suit into two or more independent actions, each
action resulting in an appealable final judgment. Van Dyke v. Boswell, O’Toole,
Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985); Aviation Composite Techs.,
Inc. v. CLB Corp., 131 S.W.3d 181, 188 (Tex. App.—Fort Worth 2004, no pet.).
Severance of claims under the Texas Rules of Civil Procedure rests within the
sound discretion of the trial court. Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d
627, 629 (Tex. 1996) (orig. proceeding); Aviation Composite Techs., 131 S.W.3d
at 188. The controlling reasons for a severance are to do justice, avoid
prejudice, and further convenience. Guar. Fed. Sav. Bank v. Horseshoe
Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (op. on reh‘g); Aviation
Composite Techs., 131 S.W.3d at 188.
The Department argues that S.M. has not provided any support for her
contention that her rights were prejudiced by conducting separate trials. We
agree. In the trial court, S.M.‘s counsel merely stated: ―I believe that these two
30 cases should be tried together, and I believe it prejudices my client‘s rights to
have them tried separately considering that the Court did order that they be tried
together.‖ And in her brief in this court, the totality of S.M.‘s prejudice argument
states: ―By Order of the referring Court, the two causes were to be tried jointly,
and without such joint trial, [S.M.‘s] rights were prejudiced.‖ S.M. made no other
argument concerning prejudice in the trial court, and she makes no other
argument concerning prejudice in this court. See Tex. R. App. P. 38.1(h)
(requiring a clear and concise argument with appropriate citations to legal
authorities); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d
279, 284 (Tex. 1994) (noting long-standing rule that a point may be waived due
to inadequate briefing). Thus, because the severance of claims rests within the
sound discretion of the trial court, because the primary reasons for a severance
are to do justice, avoid prejudice, and further convenience, and because S.M.
has not established any prejudice she suffered from separate trials, we hold that
the trial court did not abuse its discretion by conducting separate trials. We
D. No Signed Service Plan within Forty-Five Days of Adversary Hearing
S.M. also argues that her procedural due process rights were violated
because the Department did not obtain her signature on the service plan it filed
after the April 24, 2008 adversary hearing. She contends that the service plan
was not effective until she reviewed and signed it with the caseworker on
31 October 2, 2008, and that the delay deprived her of four months of time to work
on the service plan.
Family code section 263.101 requires the Department to file a service plan
no later than the forty-fifth day after the trial court renders a temporary order
appointing the Department as the temporary managing conservator. Tex. Fam.
Code Ann. § 263.101 (Vernon 2008). Section 263.103(c), however, permits the
Department to file the service plan without the parent‘s signature if it ―determines
that the child‘s parents are unable or unwilling to sign the service plan.‖ Id. §
263.103(c) (Vernon 2008). Section 263.103(d)(2) in turn provides that the
service plan takes effect when the Department ―files the plan without the parents‘
signatures.‖ Id. § 263.103(d).
In this case, the Department filed the service plan with the trial court on
April 29, 2008, five days after the April 24, 2008 adversary hearing. Johnson
testified that the Department filed the service plan without S.M.‘s signature
because S.M. had been volatile when the Department removed T.T.F. Johnson
also testified that she mailed the service plan to S.M.‘s attorney at the end of
April, that S.M. called her on May 18, 2008, and said that she had reviewed the
service plan with her attorney, and that Johnson set appointments for S.M. with a
counselor and Family Circle Services as soon as S.M. called her to say that she
had gone over the service plan with her attorney. Thus, S.M.‘s contention that
she was denied four months of valuable time to work her service plan is without
merit. The service plan took effect when the Department filed it without S.M.‘s
32 signature on April 29, 2008, S.M. was aware of the service plan‘s requirements
within forty-five days of the April 24, 2008 adversary hearing, and Johnson
scheduled appointments for S.M. shortly thereafter. On these facts, we hold that
the filing of the service plan without S.M.‘s signature did not violate S.M.‘s
procedural due process rights. See id. §263.103(c), (d). We overrule this part of
S.M.‘s first issue.
E. Untimely Status and Permanency Hearings
S.M. also argues that the trial court violated her procedural due process
rights by not conducting a status hearing within sixty days of the April 24, 2008
temporary order, by not conducting an initial permanency hearing within 180
days of the April 24, 2008 temporary order, and by not conducting subsequent
permanency hearings within 120 days of each permanency hearing.
Family code section 263.201(a) requires the trial court to ―hold a status
hearing to review the child‘s status and the service plan developed for the child‖
no later than sixty days after the court renders a temporary order appointing the
Department as temporary managing conservator of the child. Tex. Fam. Code
Ann. § 263.201(a) (Vernon 2008). Similarly, section 263.304(a) requires the trial
court to conduct an initial permanency hearing within 180 days of the temporary
order. Id. § 263.304(a) (Vernon 2008). Finally, section 263.305 requires the trial
court to conduct subsequent permanency hearings within 120 days of the most
recent permanency hearing. Id. § 263.305 (Vernon 2008). It is undisputed that
the trial court did not conduct a status hearing within sixty days of the temporary
33 order, the initial permanency hearing within 180 days of the temporary order, or
subsequent permanency hearings within 120 days of the most recent
permanency hearings. However, it is also undisputed that the trial court did
conduct a status hearing, an initial permanency hearing, and a subsequent
permanency hearing.16
In a slightly different context, this court held in In re E.D.L., 105 S.W.3d
679, 688 (Tex. App.—Fort Worth 2003, pet. denied), that although family code
section 262.201(a) requires a trial court to conduct a full adversary hearing within
fourteen days of the date a governmental entity takes possession of a child, the
requirement is procedural, not jurisdictional. In part because section 262.201
does not contain a remedy for failing to conduct a full adversary hearing in a
timely manner, we held that the failure to timely conduct a full adversary hearing
did not require dismissal of the termination proceeding. See id. at 686–88. We
also held that both the Department and the parent had ―the right to compel the
trial court by mandamus to conduct the adversary hearing promptly.‖ Id. at 688.
Although S.M. contends that her procedural due process rights were
violated and does not ask us to hold that the trial court should have dismissed
the case once it did not timely conduct a status hearing, an initial permanency
16 The parties agree that the trial court rendered its temporary order at the April 24, 2008 adversary hearing but did not conduct a status hearing until October 2, 2008, did not conduct the initial permanency hearing until November 4, 2008, and did not conduct a subsequent permanency hearing until March 30, 2009.
34 hearing, or subsequent permanency hearings, we believe the reasons for our
holding in E.D.L. apply in this case. Sections 263.201 and 263.305 do not
contain remedies for the failure to timely hold a status hearing or a subsequent
permanency hearing, and section 263.304(b) specifically provides that any party
to the suit may compel the trial court, by mandamus, to comply with its obligation
to conduct an initial permanency hearing within the statutory deadline. See Tex.
Fam. Code Ann. §§ 263.301, .304(b), .305. Thus, under the plain language of
section 263.304(b) and the reasoning in E.D.L., S.M. could have sought to
enforce her procedural right to a timely status hearing, a timely initial
permanency hearing, and timely subsequent permanency hearings by
mandamus. See Tex. Fam. Code Ann. § 263.304(b); E.D.L., 105 S.W.3d at 688.
But S.M. did not seek mandamus relief or otherwise complain to the trial court in
a timely manner about its failure to conduct the hearings. See In re N.V.D., 102
S.W.3d 268, 269–70 (Tex. App.—Waco 2003, pet. denied) (acknowledging the
trial court‘s failure to timely conduct a subsequent permanency hearing, noting
that the parent did not seek mandamus and that the trial court conducted the
subsequent permanency hearing as soon as the delay was brought to its
attention, and holding that the error was harmless because the parent did not
demonstrate that the error probably caused the rendition of an improper
judgment). Thus, S.M. cannot complain on appeal that she was denied
procedural due process in the trial court when she did not seek to enforce her
procedural rights in a timely manner in the trial court. See id.
35 Moreover, S.M. has also failed to show that she was harmed by the trial
court‘s failure to timely conduct the status hearing, the initial permanency
hearing, or the subsequent permanency hearings. Indeed, she makes no
argument at all concerning harm, and she makes no complaint concerning
anything that occurred at the status hearing, the initial permanency hearing, or
the subsequent permanency hearing. ―[T]he remedy for a denial of due process
is due process.‖ Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926,
933 (Tex. 1995) (citing Perry v. Sindermann, 408 U.S. 593, 603, 92 S. Ct. 2694,
2700–01 (1972)). Recalling that the trial court did, albeit in an untimely manner,
conduct a status hearing, an initial permanency hearing, and a subsequent
permanency hearing, we hold that S.M. is not entitled to relief for the trial court‘s
failure to timely conduct the hearings because S.M. already received the process
she was due. On these facts, we hold that the trial court did not violate S.M.‘s
procedural due process rights by failing to timely conduct the status hearing, the
initial permanency hearing, or the subsequent permanency hearings. We
F. Cumulative Due Process Violation and Abuse of Discretion
In the final part of her first issue and in part of her second issue, S.M.
contends that each of the above failures by the trial court and the Department
cumulatively denied her the ―procedural guarantees of the Texas Family Code to
such an extent that her due process rights were violated‖ and that the trial court
abused its discretion by denying the three motions in which she raised the
36 foregoing procedural issues. Although we do not condone the trial court and the
Department‘s lack of diligence in this case, we have held that each of S.M.‘s
procedural due process arguments is without merit. Thus, we also hold that the
trial court and the Department‘s actions or inactions did not cumulatively violate
S.M.‘s procedural due process rights and that the trial court did not abuse its
discretion by denying the motions raising S.M.‘s procedural due process
complaints. Accordingly, we overrule the remainder of S.M.‘s first issue and the
first part of S.M.‘s second issue.
IV. Exclusion of Certified Transcript of Adversary Hearing
In the second part of her second issue, S.M. incorporates each of the
arguments from her first issue and argues that the trial court erred by excluding
from evidence at trial a certified transcript of the April 24, 2008 adversary
hearing. We review a trial court‘s ruling to exclude evidence for an abuse of
discretion. See In re J.T.G., 121 S.W.3d 117, 133 (Tex. App.—Fort Worth 2003,
no pet.) (citing Nat’l Liabl. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.
2000)). We must ―uphold the trial court‘s evidentiary ruling if there is any
legitimate basis in the record for the ruling.‖ Id. (citing Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).
When S.M. sought to admit the transcript of the adversary hearing into
evidence at trial, the Department objected to the transcript as irrelevant, and the
trial court sustained the objection. In making the objection, the Department‘s
counsel stated on the record and outside the presence of the jury that the
37 Department would abandon the ground for termination relating to S.M.‘s alleged
failure to comply with court orders. On appeal, S.M. argues that the transcript
was admissible because it ―would have allowed the jury to understand the lack of
effort on the Department‘s part in following the requirements statutorily placed
upon the Department.‖
―‗Relevant evidence‘ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.‖ Tex. R.
Evid. 401. Had the Department sought termination of S.M.‘s parental rights due
at least in part to her alleged failure to comply with the trial court‘s orders, then
the transcript of the adversary hearing might have arguably been relevant. See
id. However, the Department abandoned that ground, and the trial court did not
charge the jury on that ground. Thus, the transcript had no tendency to make
any fact of consequence more or less probable. See id. Further, S.M. solicited
testimony from Department personnel concerning the Department‘s non-
compliance with statutory deadlines. Therefore, we hold that the trial court did
not abuse its discretion by excluding the transcript of the April 24, 2008
adversary hearing from evidence, and we overrule the remainder of S.M.‘s
second issue.
V. Sufficiency of the Evidence
S.M. argues in her third issue that the evidence is legally and factually
insufficient to support the jury‘s findings that she knowingly placed or knowingly
38 allowed T.T.F. to remain in conditions or surroundings which endangered his
physical or emotional well-being and that she engaged in conduct or knowingly
placed T.T.F. with persons who engaged in conduct which endangered his
physical or emotional well-being. She argues in her fourth issue that the
evidence is legally and factually insufficient to support the jury‘s finding that
termination of her parental rights is in T.T.F.‘s best interest.
A. Standards of Review
1. In General
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. See Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008);
Holick, 685 S.W.2d at 20. We strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent. Holick,
39 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth
2008, 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. See Tex. Fam. Code Ann. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination
may not be based solely on the best interest of the child as determined by the
trier of fact. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206. 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 (Vernon 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).
2. Legal Sufficiency
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
40 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.
3. Factual Sufficiency
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder‘s findings and not supplant the verdict 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 parent violated section 161.001(1)(E) and that the termination of the
41 parent-child relationship would be in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(1)(E); In re C.H., 89 S.W.3d at 28. 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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Endangerment
S.M. argues in part of her third issue that the evidence is legally and
factually insufficient to support the jury‘s finding that she engaged in conduct or
knowingly placed T.T.F. with persons who engaged in conduct which
endangered T.T.F.‘s physical or emotional well-being.
1. Applicable Law
Family code section 161.001(1)(E) permits a trial court to order termination
of the parent-child relationship if it finds by clear and convincing evidence that the
parent ―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). Endangerment means to expose
to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at
125; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection
(E), the relevant inquiry is whether evidence exists that the endangerment of the
child‘s physical well-being was the direct result of the parent‘s conduct, including
acts, omissions, or failures to act. See J.T.G., 121 S.W.3d at 125; see also Tex.
42 Fam. Code Ann. § 161.001(1)(E). Additionally, termination under subsection (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 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 parent‘s conduct be directed at the child or that the
child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125.
The specific danger to the child‘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 child‘s birth. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—
Fort Worth 2001, no pet.).
2. Analysis
The evidence is legally and factually sufficient to support the jury‘s finding
that S.M. engaged in conduct that endangered T.T.F.‘s physical or emotional
well-being. S.M. was effectively homeless between August 2007 and March
2008. In March 2008, she moved into a house that had rat feces on the floor,
exposed nails on the floorboards, and rotting meat on the counter, and she did
not sufficiently clean the house despite being asked to do so by Durham and
acknowledging the house‘s unsuitable condition. S.M. also allowed her Medicaid
and food stamps to lapse in October 2007, and she admitted that the lapse made
it difficult for her to provide for her children, including T.T.F. Indeed, T.T.F. did
43 not receive his immunizations when they were due because S.M. did not have
Medicaid. S.M. took T.T.F. to the hospital in February 2008, and although she
testified that she fed T.T.F., S.M. admitted that she did not previously take T.T.F.
to a doctor to determine if there was a problem, even though she had noticed
that he was not getting any bigger. It was only after T.T.F. became lethargic—he
was just lying around and not crawling, bouncing up and down, or babbling as he
would normally do—that S.M. took T.T.F. to the hospital.
Dr. Hollis testified that T.T.F. was acutely ill when she examined him on
March 6, 2008. And after explaining that T.T.F. had fallen from the fiftieth
percentile at birth to ―around the third percentile‖ at thirteen months and opining
that T.T.F.‘s failure to thrive was caused by the lack of nutrition given to him by
S.M., Dr. Hollis testified that T.T.F. was in danger of severe bodily injury or death
at the time of the March 6 visit. In addition, Dr. Hollis opined that it constituted
medical neglect for S.M. to allow T.T.F. to develop significant ear infections
without taking him to the doctor.
In In re S.G.S., 130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no
pet.), the court found legally sufficient evidence that the parents had engaged in
conduct or knowingly placed their children with persons who engaged in conduct
that endangered their children‘s physical or emotional well-being. The court
noted, among other things, that one child had been diagnosed with failure to
thrive, was critically ill at the time, and would have been at risk of death had the
malnutrition continued and that the parents failed to provide a stable and safe
44 living environment for their children. Id. at 233, 238. And after acknowledging
that ―much of the [parents‘] hardship was obviously attributable to their
impoverishment,‖ the court stated that ―the evidence reveal[ed] more than
mischance [because the parents] failed to secure for their children the basic
necessities of life even to the extent available through public assistance.‖ Id. at
238. Similar to the plight of the parents in S.G.S., many of S.M.‘s difficulties
related to her impoverishment and were arguably compounded by her
aggravated robbery arrest (for which the charges were subsequently dismissed),
but S.M. allowed her government benefits to lapse, did not timely renew them,
and neglected T.T.F.‘s medical condition despite actual knowledge that he was
not gaining weight.
S.M. argues that there is insufficient evidence of endangerment because
the hospital did not diagnose T.T.F. with failure to thrive, because Dr. Hollis
diagnosed T.T.F.‘s failure to thrive on the first visit despite acknowledging that
the condition cannot be diagnosed on one visit, because T.T.F. was stable when
he was discharged from the hospital and when he visited Dr. Hollis, and because
T.T.F. had numerous ear infections even while living with his foster parents.
However, the hospital diagnosed T.T.F. with an ear infection, pneumonia, and
RSV, and Dr. Hollis testified that her failure to thrive diagnosis was a working
diagnosis and that she subsequently reviewed all of T.T.F.‘s prior medical
records. Finally, although T.T.F. had several ear infections after moving into
foster care, the foster parents routinely took T.T.F. to see Dr. Hollis instead of
45 allowing his ear infections to worsen. Thus, the jury heard evidence from which it
could reasonably form a firm conviction or belief that S.M. endangered T.T.F.
S.M.‘s argument merely points to conflicts in the evidence, and we are obligated
to leave the resolution of those conflicts to the jury. See J.P.B., 180 S.W.3d at
573 (requiring reviewing courts to view the evidence in the light most favorable to
the verdict and to defer to the jury‘s determinations of credibility issues, ―even
when credibility issues are reflected in the written transcript‖).
S.M. also argues that the evidence of endangerment is insufficient
because T.T.F. gained more weight when living with S.M. (0.61 pounds per
month) than when living with his foster parents (0.5 pounds per month).
However, S.M.‘s argument focuses only on two of the six months that T.T.F. lived
in foster care and ignores the evidence that T.T.F. fell from the fiftieth percentile
to the third percentile while he lived with her. To the extent that there is any
conflict in this evidence, the resolution of that conflict was for the jury. See id.
Viewing all the evidence in the light most favorable to the termination
judgment, and disregarding all contrary evidence that a reasonable factfinder
could disregard, we hold that the evidence is legally sufficient to support a
factfinder‘s firm conviction or belief that S.M. engaged in conduct that
endangered T.T.F.‘s physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(1)(E); J.P.B., 180 S.W.3d at 573; S.G.S., 130 S.W.3d at 238.
Likewise, giving due deference to the jury as factfinder, we hold that the evidence
is also factually sufficient to support the jury‘s finding that S.M. engaged in
46 conduct that endangered T.T.F.‘s physical well-being. We therefore overrule
S.M.‘s third issue.17
C. Best Interests of the Child
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) (Vernon 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;
17 Because we hold that the evidence is legally and factually sufficient to support the jury‘s finding that S.M. engaged in conduct that endangered T.T.F.‘s physical or emotional well-being, we need not address the remainder of S.M.‘s third issue. See Tex. R. App. P. 47.1.
47 (7) whether there is a history of abusive or assaultive conduct by the child‘s family or others who have access to the child‘s home;
(8) whether there is a history of substance abuse by the child‘s family or others who have access to the child‘s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child‘s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency‘s close supervision;
(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.
48 Id. § 263.307(b); R.R., 209 S.W.3d at 116.18 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.
While there is a strong presumption that keeping a child with a parent is in
the child‘s best interest, the record shows that the evidence is legally and
factually sufficient to support the jury‘s finding that termination of S.M.‘s parental
rights is in T.T.F.‘s best interest. See Tex. Fam. Code Ann. § 106.001(2); R.R.,
209 S.W.3d at 116.
18 Other, nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include:
(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (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).
49 T.T.F. was two years and seven months old at the time of trial, but he had
lived with S.M. for only about eight or nine of his thirty-one months.19 See Tex.
Fam. Code Ann. § 263.307(b)(1)–(2). T.T.F. was removed at approximately two
months old, returned to S.M. at approximately seven months old, and removed a
second time at thirteen and one-half months old. See id. § 263.307(b)(2), (4).
While living with S.M. from September 2007 through March 2008, T.T.F. dropped
to the third percentile in weight for his age, and he developed pneumonia, RSV,
and ear infections. See id. § 263.307(b)(9). In addition, T.T.F.‘s lack of
development during that period required speech and behavioral therapy, and he
regressed from the ―happy-go-lucky,‖ thriving child that left the foster parents‘
home at six months old to cowering over his food and being hesitant of strangers
at thirteen months old. See id. § 263.307(b)(1).
Concerning the magnitude, frequency, and circumstances of the harm to
T.T.F., S.M. points to testimony stating that there is no indication that T.T.F.
suffered permanent harm from his time with S.M. See id. § 263.307(b)(3).
Although the evidence suggests that T.T.F. was healthy and thriving at the time
of trial, Dr. Hollis testified that it will be some time before she can determine
whether T.T.F. will have learning disabilities or other deficiencies associated with
poor brain growth. And even if T.T.F. avoided permanent harm, the evidence
19 S.M.‘s four oldest children have also lived for extended periods in foster care, and the Department is the managing or temporary conservator for each of S.M.‘s four oldest children.
50 clearly supports a conclusion that T.T.F. was endangered while living with S.M.
For example, Dr. Hollis testified that T.T.F.‘s failure to thrive was caused by
S.M.‘s failure to provide him with sufficient nutrition, that failure to thrive is
dangerous because it means the body does not have adequate calories for
muscle, bone, and brain growth, that failure to thrive can cause a child to die, and
that T.T.F. was in danger of severe bodily injury or death on March 6, 2008.
Moreover, T.T.F. was in this condition the day after being removed from the
house on Cleveland Street that had rat feces on the floor, feces on the door,
boards with exposed nails, and rotten meat on the counter. See id.
There is also evidence of a history of abusive, assaultive, or threatening
conduct by S.M. and her acquaintances. See id. § 263.307(b)(7). While there is
no evidence that S.M. has physically abused any of her children, S.M. admitted
problems with family violence and aggravated assault—she admitted to physical
altercations with her friend T‘Neal, her mother, and the fathers of her children—
and that some of the incidents occurred in the presence of her children. And
although S.M. did not physically assault any Department workers, she verbally
threatened Durham more than once, hung up on Johnson many times and within
two months of trial, and yelled at Johnson and other Department workers.
Although S.M.‘s last positive drug test was almost two years before trial,
she does have a history of substance abuse. See id. § 263.307(b)(8). S.M.‘s
first involvement with the Department occurred because J.K.P was with her in
May 2002 when she fainted after smoking marijuana. In March 2007, when
51 T.T.F. was approximately two months old, S.M. tested positive for cocaine,
necessitating the Department‘s first removal of T.T.F. S.M. also had a positive
drug test in October 2007, the month after the Department returned her five
children to her following the March 2007 removal. There is, however, evidence
that S.M. has not had substance abuse problems since October 2007; Durham
acknowledged that drugs have not been ―an everyday problem‖ for S.M., and
S.M. testified that she no longer uses drugs and that she is not drug-tested
anymore.
There is also evidence that S.M. has demonstrated some level of
willingness to complete her service plan, to cooperate with the Department‘s
supervision, to make positive environmental and personal changes, and to
improve her parenting skills. See id. § 263.307(b)(10)–(13). S.M. attended and
completed parenting classes and counseling through the Christian Women‘s Job
Corps after March 2008 where she learned age-appropriate discipline
techniques, allowed announced and unannounced home visits, and prepared
written budgets with Johnson. S.M. also obtained a legal source of income
through social security benefits, and she lived in appropriate housing for
approximately ten months before trial—six months at the mission and almost four
months in her current house. S.M. has also kept up with her government
benefits since G.J.M.B.‘s birth. G.J.M.B. is healthy and does not have any
developmental difficulties, and S.M. cares for and appropriately nurtures
G.J.M.B.; Johnson testified that S.M. ―appears to be a good mother‖ to G.J.M.B.
52 But S.M.‘s improvement must also be viewed in context with her prior
conduct. See D.M., 58 S.W.3d at 814 (noting that the best interest of the child is
often ―infused with the statutory offensive behavior‖ but stating that ―the best
interest determination must have a firm basis in facts standing apart from the
offending behavior‖). S.M. has a substantial history with the Department, dating
to her May 2002 marijuana fainting incident, and all of her children were removed
in December 2005 after she left them with a friend‘s mentally ill neighbor.
Further, Johnson referred S.M. to the Helen Farabee Center so that she could
maintain minimal employment to increase her monthly income while also not
losing her social security benefits, but S.M. did not show up for her interview.
Moreover, S.M.‘s stated attitude was that it was the Department‘s
responsibility to provide her children with basic necessities. And although S.M.
qualified for Medicaid and food stamps, she allowed both to lapse in October
2007 and did not reinstate them by March 2008. It was at the end of this period
that T.T.F. was diagnosed as failure to thrive. Durham testified that S.M. did not
seem to comprehend the danger of T.T.F.‘s failure to thrive diagnosis, and S.M.
testified that she is ―borderline intellectual functioning,‖ meaning that she has
difficulty understanding sophisticated needs like those of a child.
The evidence of S.M.‘s improved parenting skills and stability must be
balanced against the relative brevity of her stability in light of her age. See In re
S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.) (―Evidence of a
parent‘s unstable lifestyle can support a factfinder‘s conclusion that termination is
53 in the child‘s best interest.‖); see also In re Z.C., 280 S.W.3d 470, 476 (Tex.
App.—Fort Worth 2009, pet. denied) (explaining that a father‘s ―efforts to improve
his ability to effectively parent on the eve of trial [were] not enough to overcome a
decade of poor parenting and neglect‖). S.M. maintained a stable home of her
own for less than four months out of her eleven years as an adult. There is also
evidence that S.M. does not have a support system, such as extended family or
friends, available to assist her if her parental rights are not terminated. See Tex.
Fam. Code § 236.307(b)(13).
The jury also heard evidence concerning several of the Holley factors.
See 544 S.W.2d at 371–72. For example, the jury heard evidence that many of
S.M.‘s difficulties are related to her impoverishment and were arguably
compounded by the aggravated robbery charge that was later dismissed. See id.
at 372 (excuses for the parent‘s acts or omissions). There is also evidence that
S.M. loves her children, that she does not miss visitations with her children, and
that Johnson has seen T.T.F. run to his mother at visitation and tell her that he
loves her. See id. (―the desires of the child‖ and ―the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one‖). But the jury also heard evidence that T.T.F. was a ―happy-go-
lucky,‖ thriving child when he returned to S.M. at six months old but that he
cowered over his food and was hesitant of strangers at thirteen months old.
T.T.F. also had speech and behavioral problems that necessitated therapy, and
54 he has benefitted from therapy. See id. (listing the child‘s emotional and physical
needs and danger now and in the future).
Moreover, the foster parents would like to adopt T.T.F. See id. (plans for
the child by those seeking custody). T.T.F. is very attached to his foster parents
and feels safe with them. The foster parents adore T.T.F. and treat him as one
of their own children, and their home is stable and provides him with a normal
routine. See id. (stability of the home or proposed placement). The foster
mother has learned how to manage T.T.F.‘s angry outbursts, is observant and
very willing to get T.T.F. the help that he needs, and has helped him regain his
health after his failure to thrive diagnosis. See id. (parenting ability of the
individuals seeking custody). J.K.P. is also living with the same foster parents.
J.K.P. reads books to T.T.F., and the bond between J.K.P. and T.T.F. has
strengthened. T.T.F. was ―very happy and bouncing around because [J.K.P.]
came to live at the same home.‖
Clearly, the jury heard conflicting evidence relevant to its best interest
finding. S.M. maintained suitable housing for herself and G.J.M.B., and she has
demonstrated improvement with her parenting skills. But S.M. first established
some stability in the months before trial; her monthly income is barely enough to
provide for her and G.J.M.B.; her improvement is better in some areas than
others; she has a significant history of Department involvement, questionable
decisions, and instability; and T.T.F.‘s foster parents would like to adopt him and
have provided him with the stability he never had with S.M. The evidence
55 presents a close case, but viewing the evidence in the light most favorable to the
finding and judgment, we conclude that the evidence is such that the jury could
reasonably form a firm belief or conviction that termination of S.M.‘s parental
rights is in T.T.F.‘s best interest. See J.P.B., 180 S.W.3d at 573. We also
conclude, viewing all the evidence in a neutral light, that the jury could
reasonably form a firm conviction or belief that termination is in T.T.F.‘s best
interest. See H.R.M., 209 S.W.3d at 108. We therefore hold that the evidence is
legally and factually sufficient to support the jury‘s best interest finding, and we
overrule S.M.‘s fourth issue.
VI. Conclusion
Having overruled each of S.M.‘s four issues, we affirm the trial court‘s
judgment.
ANNE GARDNER JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: December 2, 2010
in the Interest of T.T.F., a Child (in the Interest of T.T.F., a Child) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.