COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00147-CV
IN THE INTEREST OF V.L.A. AND E.M.C., CHILDREN
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
V.A. (“Mother”) appeals the trial court’s order terminating her rights to her
children, V.L.A. (“V”) and E.M.C. (“E”). 2 We affirm.
1 See Tex. R. App. P. 47.4. 2 We use aliases for the children and their relatives throughout this opinion. See Tex. R. App. P. 9.8(b)(2). I. BACKGROUND FACTS 3
A. MOTHER’S ACTIONS
Mother had two adult daughters, a teenage son (“A”), and three-year-old V
when she began dating D.C. (“Dan”) in 2009. Dan was twenty-one and Mother
was about forty-one at the time. Mother and Dan began a romantic relationship,
and Mother became pregnant with E in early 2010. E was born January 22,
2011.
Mother and Dan’s relationship was volatile. Mother stabbed Dan in the
hand with a fork after Dan failed to pay the electric bill. Another fight led to
Mother accusing Dan of choking her, but it was later determined that Mother had
scratched herself and Dan. This incident led to Mother pleading guilty to
assaulting Dan. Mother admitted she has a bad temper. However, Mother and
Dan continued to live together, and Dan would watch V and E while Mother
cleaned houses.
Dan moved out of the three-bedroom apartment he shared with Mother, A,
V, and E in July 2011. Shortly thereafter, V.C. (“Victor”), a friend of A’s, moved
in. Victor, who was eighteen, was a known drug user with an extensive criminal
record. Victor introduced Mother to Buddah, and Mother began dealing
methamphetamine for Buddah to make extra money. Mother knew selling
3 As required for a legal- and factual-sufficiency review, this evidence is recited in the light most favorable to the judgment, with due deference conferred on the facts as necessarily found by the fact-finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
2 methamphetamine was dangerous and, specifically, that it would endanger V and
E. However, she stored her methamphetamine in the bedroom she shared with
V and E. She also allowed methamphetamine to be smoked in her home while V
and E were present. Indeed, she admitted that she placed her children in
harmful situations. Dan was afraid of Victor and was fearful of the situation V
and E were living in with Mother and Victor. Mother considered Victor to be part
of her family.
In August 2011, V told Mother that her babysitter had abused her
physically and sexually. Mother suspected that the babysitter had sexually
abused E as well. Mother called the police. During the ensuing investigation,
Mother was not cooperative, was belligerent, and broke several therapy
appointments for V. Although Mother stated V had cigarette burns on her back,
V’s physical exam showed no evidence to corroborate the abuse allegations. In
short, Mother’s story about the extent of V’s abuse changed dramatically as time
went by. The babysitter vehemently denied abusing V or E. The investigating
police officer, Detective David Bearden, suspected Mother was dealing drugs;
indeed, Mother told Bearden about her previous conviction for possession of
2,000 pounds of marijuana and seemed proud of it. 4 Bearden had “issues with
some of the things” that Mother said V told her about the abuse because V was
4 Mother admitted at trial that she had been convicted of transporting eighty-nine pounds of marijuana in 1998 and that her two older daughters and A were living with her at the time. The daughters went to live with their father after this, and Mother does not have a close relationship with them.
3 not verbal enough to “have put that together to tell [Mother].” Bearden closed the
investigation for lack of evidence.
B. MOTHER’S ARREST
On November 4, 2011, police officers executed a search warrant at
Mother’s home. The search warrant was obtained after a confidential informant
twice bought drugs from Mother and after drug-selling activities were seen
occurring at Mother’s home. At the time the search warrant was executed, Dan
was sleeping on the couch, Mother was in her bedroom with V and E, A was in
his bedroom, and Victor was in his room with two friends. Mother led the officers
to a stash of 5.8 grams of methamphetamine in her purse on the floor of the
bedroom. She also had a marijuana pipe and small electronic scales in her
bedroom. In Victor’s room, officers found a methamphetamine pipe containing
methamphetamine residue, a marijuana pipe, syringes, and a hookah. They
arrested Mother and Victor for possession of a controlled substance; Mother and
Dan later were charged with child endangerment. Mother was convicted of
possession of a controlled substance and sentenced to two years’ confinement.
She was also convicted of two counts of endangering a child and received two
concurrent 250-day sentences.
C. PROCEDURAL FACTS LEADING TO TRIAL
The Texas Department of Family and Protective Services (“DFPS”) filed a
suit to terminate Mother’s, Dan’s, and V’s father’s parental rights to V and E on
November 7, 2011. DFPS sought termination “if the children cannot safely be
4 reunified with either parent.” In Mother’s family-service plan, DFPS listed family
reunification as the stated goal. See Tex. Fam. Code Ann. § 263.102(a)(5)
(West 2008), § 263.103 (West Supp. 2012). But DFPS warned Mother that if
reunification “cannot be done, DFPS also has a backup plan called the
Concurrent Goal, . . . [which] DFPS works on . . . at the same time as the
Permanency Goal.” Further, DFPS gave Mother numerous behavioral changes
and tasks to complete to reduce the risks to V and E. See id. § 263.102(a)(7)–
(8). Mother acknowledged that if she failed to “provide [her] child(ren) with a safe
environment, [her] parental and custodial rights [could] be restricted or
terminated or [her] child(ren) [might] not be returned to [her].” See generally id. §
263.102 (mandating contents of service plan).
On November 18, 2011, the trial court held a hearing and issued a
temporary order appointing DFPS temporary managing conservator of V and E.
See id. § 262.201 (West Supp. 2012). The order warned Mother that if she failed
to comply, her failure “may result in the restriction or termination of parental
rights.” See id. § 262.201(c). On March 27, 2012, DFPS filed a progress report
regarding the family-service plan with the trial court and stated that the
permanency goal continued to be family reunification. See id. § 263.303 (West
Supp. 2012). On April 5, 2012, the trial court entered an order after a
permanency hearing that continued DFPS’s temporary managing
conservatorship and noted that Mother “has not demonstrated adequate and
appropriate compliance with the service plan as she is incarcerated.” See id. §
5 263.306 (West Supp. 2012). The order again warned Mother that her parental
rights could be terminated if she did not comply with the family-service plan. A
similar order was entered on June 28, 2012, after a hearing on DFPS’s progress
report.
DFPS’s goal eventually changed from reunification to termination based on
“the [lack of] progress the parents have made throughout the case.” Indeed,
when DFPS filed its progress report on September 11, 2012, it stated that the
permanency goal was termination. Likewise, V and E’s guardian ad litem (“the
GAL”) recommended in her report filed before the permanency hearing that
Mother’s parental rights be terminated. Mother knew that the goal had been
changed. The trial court entered an order on September 20, 2012, continuing
DFPS’s conservatorship and noting Mother was incarcerated and noncompliant
with the family-service plan.
Mother was released on parole in October 2012. While she was
incarcerated, Mother completed educational programs regarding addiction,
parenting, anger management, and alcoholism. On October 30, 2012, DFPS
filed a progress report again stating termination was the primary goal. On
November 8, 2012, the court entered a fourth permanency order, finding Mother
“has not demonstrated adequate and appropriate compliance with the service
plan. She was recently released from incarceration and completed some self-
help packets while incarcerated.”
6 On December 12, 2012, Mother had a psychological evaluation as
required by the family-service plan, which was administered by Mark Foster.
During the evaluation, Mother downplayed her responsibility for her actions and
did not express regret about selling methamphetamine. She was unable to put
her children’s needs above her own and could not recognize the danger of drugs
or the need to stop using or dealing drugs. During subsequent group therapy,
which also was required by the family-service plan, Mother flirted with the
therapist, Mark Ditloff, because “she only knows how to relate [to Ditloff] through
sex.” Ditloff testified that Mother participated in group sessions and seemed to
be improving.
On January 25, 2013, the trial court’s fifth permanency order, based on
DFPS’s progress report listing termination as the primary goal, stated that Mother
“is participating in services, but has not demonstrated adequate and appropriate
compliance with the service plan. She completed some self-help packets prior to
her release on August 28, 2012, 5 while incarcerated.” The trial court entered a
similar permanency-hearing order on March 7, 2013, and set DFPS’s petition for
trial on April 1, 2013. See id. § 263.306(a)(11). Mother filed a counterpetition
seeking sole managing conservatorship of V and E. On March 21, 2013, V and
E’s GAL recommended that DFPS be appointed permanent managing
5 This date appears to be incorrect because, other than this reference in the permanency order, the record shows Mother was released in October 2012. This error is not relevant to the disposition of Mother’s appellate issues.
7 conservator, stated that V’s and E’s needs were being met while in the custody of
DFPS, and explained that Mother had been noncompliant. Specifically since her
release, Mother (1) only attended two individual counseling sessions with Ditloff
in approximately four months when she was required to attend once every week,
(2) had been untruthful during her required drug-and-alcohol assessment about
her past drug use; (3) failed to participate in drug-education classes; and (4)
failed to establish and maintain stable and appropriate housing.
D. CARE OF CHILDREN WHILE IN CUSTODY OF DFPS
After Mother’s arrest, A began living with his father. V and E were placed
in foster care and both tested positive for drugs. Indeed, children can absorb
methamphetamine through their skin or by inhaling if it is being smoked in their
presence. During their time in foster care, V and E were in three inadequate
foster homes—one of which was an unsuitable family placement—before they
were finally placed in their current foster home where they are well cared for and
happy.
V, who was five at the time of Mother’s arrest, had “boundary issues” and
was overly “open to strangers,” which indicated she was “seeking love . . . from
someone.” While V was in foster care, she “played with herself regularly” and
attempted to have sex with other children “because that’s the way you show
love.” V indicated that “the way she felt close to her mother was when she
masturbated.” V’s sexual acting out decreased and eventually stopped while she
was in foster care. Although V was diagnosed with attention deficit disorder, any
8 concern about this condition waned as she continued in foster care. V had
phonological disorder, which is an inability to “use any and all syllables,” that
resolved while she was in foster care and began attending kindergarten.
E, who was eight months’ old at the time of Mother’s arrest, was severely
underweight and developmentally delayed when he entered foster care. He had
digestive issues, frequent urinary tract infections, “weak social interaction,” and
needed occupational and physical therapy. These issues were addressed while
E was in foster care. He, like V, improved while in foster care, and both were
happy at their current foster home.
E. THE TRIAL
The evidence at trial showed that DFPS concluded termination was in V’s
and E’s best interest because “[Mother] is still associating with, engaging with,
people involved in criminal activity and just concerns about her being honest and
open.” Specifically, Mother still had contact with Victor, going so far as to bail
him out of jail, and told her cell mate that she was planning to marry a convicted
felon, Josh Harrison. 6 DFPS attempted to arrange for family members to care for
V and E, but these efforts were ultimately unsuccessful. DFPS also concluded
that Mother failed to properly supervise her children: “She exposed them to
picking up an illegal substance, transporting it to her house, cutting the - -
6 Mother testified that she was not romantically involved with Harrison, but admitted she posted on her Facebook page “[Mother] love Josh” because she “love[s] him like my son.”
9 packaging the drugs in her house to the point that it exposed her children, and
allowing other members or other people [to] enter her residence to smoke
methamphetamines with her children in the residence.” At trial, the GAL
concluded that they would be at risk of abuse or neglect if they were returned to
Mother: “[Mother is not] able to take responsibility for her past actions, how
those actions have affected the children, and make really significant life changes
to be able to keep these children safe in the future.”
At trial, DFPS sought termination solely based on sections 161.001(1)(D)
and 161.001(1)(E) and abandoned the other grounds raised in its petition. Thus,
DFPS argued that Mother’s parental rights should be terminated because she
“knowingly placed or knowingly allowed [V and E] to remain in conditions or
surroundings which endanger the physical or emotional well-being of [V and E]”
or “engaged in conduct or knowingly placed [V and E] with persons who engaged
in conduct which endangers the physical or emotional well-being of [V and E].”
Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2012).
Mother testified at trial that she was willing to change because her children
are her “whole life.” She admitted she posted a picture of V on her Facebook
page, saying V was “sexy,” which she believed was an appropriate way to
describe V. Indeed, Mother’s Facebook page included many pictures of Mother
in salacious poses and a picture of Harrison smoking a hookah. She also stated
that because her only day off from work was Wednesday, her brother’s ex-wife
would move from Kansas to care for V and E. The house Mother was living in at
10 the time of trial and where she intended V and E to live with her was in a state of
severe disrepair and it appeared a man was living there with Mother. Mother
testified the man was moving out and that she was working to improve the home.
However, Mother avoided all attempts V and E’s attorney ad litem made to check
on the state of the house.
Dan participated at trial, but voluntarily relinquished his parental rights
because he wanted “the best” for E and because he could not appropriately
parent E. See Tex. Fam. Code Ann. § 161.103 (West 2008). Dan admitted
Mother loved her children but believed Mother sometimes put her interest in
selling drugs above her children’s best interest. V’s father’s parental rights were
terminated by default.
The jury unanimously found that Mother had knowingly placed or
knowingly allowed V and E to remain in dangerous conditions or surroundings
and that she engaged in conduct or knowingly placed V and E with persons who
engaged in dangerous conduct. The jury also found that termination of Mother’s
parental rights was in V’s and E’s best interest. The trial court entered a final
order of termination terminating Mother’s parental rights to V and E:
Based upon the jury’s verdict and the evidence submitted at trial, the Court finds by clear and convincing evidence that termination of the parent-child relationship between [Mother] and [V] and [E], the children the subject of this suit, is in the children’s best interest.
The Court finds by clear and convincing evidence that [Mother] has:
11 knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; and
engaged in conduct, or knowingly placed the children with persons who engaged in conduct, which endangered the physical or emotional well-being of the children.
See Tex. Fam. Code Ann. § 161.206 (West 2008). The trial court also
terminated Dan’s and V’s father’s parental rights and appointed DFPS as V and
E’s managing conservator. See id. §§ 161.001(1)(N), 161.204, 161.207.
Mother filed a motion for new trial, arguing that the evidence was legally
and factually insufficient to support the finding that termination of her parental
rights was in V’s and E’s best interest. The trial court denied the motion. Mother
then filed a timely accelerated appeal arguing that her due-process rights were
violated and that the trial court erred by admitting Foster’s expert testimony. See
Tex. R. App. P. 26.1(b), 28.4(a)(1). Neither Dan nor V’s father appeal the
termination of their parental rights.
II. LEGAL CONSIDERATIONS IN PARENTAL-TERMINATION CASES
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
12 not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). Therefore, we strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; 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. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In
re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied).
Termination decisions must be supported by clear and convincing evidence.
Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a). Evidence is clear
and convincing if it “will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Id.
§ 101.007 (West 2008). Due process demands this heightened standard
13 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).
III. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
1. Standards of Review
In evaluating the evidence for legal sufficiency in parental-termination
cases, we determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. J.P.B., 180 S.W.3d at 573. We review all the evidence in the light most
favorable to the finding and judgment. Id. We resolve any disputed facts in favor
of the finding if a reasonable fact-finder could have done so. Id. We disregard all
evidence that a reasonable fact-finder could have disbelieved. Id. We consider
undisputed evidence even if it is contrary to the finding. Id. That is, we consider
evidence favorable to termination if a reasonable fact-finder could, and we
disregard contrary evidence unless a reasonable fact-finder could not. Id. We
cannot weigh witness credibility issues that depend on the appearance and
demeanor of the witnesses, for that is the fact-finder’s province. Id. And even
when credibility issues appear in the appellate record, we defer to the fact-
finder’s determinations as long as they are not unreasonable. Id.
14 In reviewing the evidence for factual sufficiency, we give due deference to
the fact-findings and do not supplant the fact-finder’s verdict with our own.
H.R.M., 209 S.W.3d at 108. We determine whether, on the entire record, a fact-
finder could reasonably form a firm conviction or belief that the termination of the
parent-child relationship would be in the best interest of the children. Tex. Fam.
Code Ann. § 161.001(2); C.H., 89 S.W.3d at 28. If, in light of the entire record,
the disputed evidence that a reasonable fact-finder could not have credited in
favor of the finding is so significant that a fact-finder 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.
2. Change from Reunification to Termination
In her first issue, Mother argues that her due-process rights were violated
by DFPS’s arbitrary decision to seek termination instead of reunification after the
family-service plan was in place. Mother admits that her behavior around V and
E was “not a pretty picture” before her arrest on November 4, 2011; but she
asserts that DFPS’s goal was reunification even when faced with Mother’s pre-
arrest behavior. Mother points to the fact that when the goal was changed to
termination—September 2012—she was still incarcerated, had completed many
behavior-modification programs in jail, and repeatedly contacted DFPS to check
on V and E; therefore, the evidence present at the time of the family-service plan
seeking reunification was the same evidence present when DFPS changed its
goal to termination. In sum, Mother argues that DFPS had insufficient evidence
15 of a detrimental change in circumstances from the time it set reunification as the
permanency goal sufficient to support DFPS’s later decision to seek termination.
The tenor of Mother’s appellate argument shows that she is arguing there was
insufficient evidence to support DFPS’s decision to change its permanency goal, 7 which necessarily encompasses her due-process argument. See generally In
re S.N., 272 S.W.3d 45, 61 (Tex. App.—Waco 2008, no pet.) (op. on reh’g)
(recognizing all sufficiency points should be addressed “as a matter of due
process”); Smith v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d
673, 678 (Tex. App.—Austin 2005, no pet.) (stating requirement of clear-and-
convincing evidence “appropriate because termination is a drastic remedy of
such weight and gravity that due process requires the [S]tate to justify
termination of the parent-child relationship by more substantial proof than a
preponderance of the evidence”). Thus, we address Mother’s first issue as a
sufficiency point.
Although the right to parent is one of constitutional dimension, DFPS is not
required to show that other alternatives, short of termination, were not available
7 DFPS asserts that Mother failed to preserve this issue for our review. Under the facts of this case, we believe Mother’s motion for new trial, raising the claim that the evidence was insufficient to support termination, adequately raised her claim in the trial court that the evidence was insufficient to support DFPS’s decision to proceed to termination, rendering the termination a violation of her due-process rights. See Tex. R. Civ. P. 324(b); Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387–88 (Tex. 2008) (holding post- trial, no-evidence motion challenging single jury issue sufficient to preserve error even if it fails to specify every reason the evidence is insufficient).
16 to protect the children. In re L.F., 617 S.W.2d 335, 340 (Tex. App.—Amarillo
1981, no writ). At the time DFPS changed its primary goal to termination, the
GAL also recommended termination. The GAL visited Mother in jail. During
these visits, Mother “always seemed to place her needs over her children. She
deflected her circumstances . . . onto other people to reflect the bad things they
were doing, to not take accountability for her own actions.” Mother did not ask
about V and E, but wanted to talk about “how [Mother] was treated as a child and
how she got into the situation she was in.” Mother further told the GAL that she
was forced to sell drugs because she could not take care of V and E financially
although she had a job. When Mother was in jail, she had $2,700 in her inmate
account, which was money she had “earned” and which Mother admitted meant
she was not “broke.” The GAL also testified that Mother lied to her repeatedly.
The GAL believed termination was appropriate because “[o]ver the course of this
. . . case, [the GAL] just doesn’t see the progress, [Mother] being able to take
responsibility for her past actions, how those actions have affected the children,
and make really significant life changes to be able to keep these children safe in
the future.”
The DFPS case worker assigned to V and E’s case (“the case worker”)
testified that Mother’s behavior had not changed substantially since V and E
were removed from her care. The GAL’s and the case worker’s observations of
Mother’s behavior after her arrest and before DFPS changed its permanency
goal were sufficient to support its decision. Cf. In re A.P., 184 S.W.3d 410, 416
17 (Tex. App.—Dallas 2006, no pet.) (questioning “lack of evidence regarding the
abrupt change from a goal of reunification to termination shortly before the trial in
this matter,” but emphasizing court’s role is to determine “whether all the
evidence, both in support of and contrary to the trial court’s finding, is such that
the trial court could reasonably form a firm belief or conviction about the truth of
the State’s [termination] allegations”).
3. Best Interest
To the extent Mother’s claim could be construed as an argument that the
evidence was insufficient to support termination based on V’s and E’s best
interest, we conclude the evidence was sufficient. 8 See id. at 415–16
(recognizing ultimate question for appellate court is evidence sufficiency to
support termination, not sufficiency to support change in permanency goal).
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment:
8 Mother seems to concede that, before she was arrested, she knowingly placed or knowingly allowed V and E to remain in dangerous conditions or surroundings and that she engaged in conduct or knowingly placed V and E with persons who engaged in dangerous conduct. See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
18 (1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
(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;
19 (C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116. Other, nonexclusive factors that the
trier of fact in a termination case may use in determining the best interest of the
child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(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.
20 Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
These factors are not exhaustive; some listed factors may be inapplicable to
some cases, while other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, the Holley factors focus on the
best interest of the children and not the best interest of the parent. See A.P., 184
S.W.3d at 415.
The evidence at trial showed that Mother chose her relationships with
known drug offenders over her children. She continued to nurture those
relationships even after being released from jail even though the family-service
plan directed her to “alter behaviors that expose [V] and [E] to risk of harm,” “to
protect [V] and [E] from people who may inflict serious harm,” and to “build a
support network that will help ensure the safety of [V] and [E].” She even went
so far as to pay $1,000 to bail Victor out of jail a few months before the
termination trial and while she was still under an obligation to make monthly
payments for V’s and E’s support. At trial, extensive evidence was introduced
showing the great emotional, physical, and developmental strides V and E made
once they were placed in an appropriate foster home. V stated that she wanted
to live with Mother, but also wanted to stay with her current foster parents. Both
V and E are happy at their current foster home. Mother’s psychiatric evaluation
revealed that she was antisocial, was not remorseful about her past involvement
with drugs, and did not think “hanging out with people that have criminal
backgrounds or that engage in criminal activities” was wrong. Mother was
21 unable to put her children’s needs above her own and did not believe selling
drugs was dangerous. Mother did not have a suitable home for V and E at the
time of trial.
Considering the relevant statutory and Holley factors, we hold that, in light
of the entire record, and giving due consideration to evidence that the fact-finder
reasonably could have found to be clear and convincing, the fact-finder
reasonably could have formed a firm belief or conviction that termination of
Mother’s parental rights to the children was in the children’s best interest. See In
re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011, no pet.) (noting
that the parents’ “poor judgment [and] the constancy of their drug use” weighed
in favor of terminating their parental rights); In re S.B., 207 S.W.3d 877, 887–88
(Tex. App.—Fort Worth 2006, no pet.) (holding that evidence of a parent’s failure
to comply with her family-service plan supports a finding that termination is in the
best interest of the child); Smith, 160 S.W.3d at 681 (“[I]n considering the best
interest of the child, evidence of a recent turn-around in behavior by the parent
does not totally offset evidence of a pattern of instability and harmful behavior in
the past.”). We overrule issue one.
B. ADMISSION OF EVIDENCE
1. Error
In her second issue, Mother asserts that the trial court erred by allowing
Foster to testify that Mother was not credible. At trial, Foster testified that Mother
could not be believed:
22 Q Did [Mother] ever acknowledge, when you were with her, the level of danger that it put her children in to be selling methamphetamines out of her apartment?
A No.
Q Did she ever even make a statement that she’d never do it again?
Q If she did, if she said that today -- once again, you did your evaluation in December -- if today she said, oh, I’ll never do that again, how much confidence can we put into that?
[Mother’s counsel]: Objection, calls for speculation, lack of foundation.
THE COURT: Overruled.
A Based on her personality type and her history, I wouldn’t see any reason to believe -- to have any confidence in it at all.
Mother asserts that this testimony was impermissible because it was an expert
opinion regarding Mother’s truthfulness.
DFPS argues that Mother has failed to preserve error on this issue
because her trial objection does not comport with her complaint on appeal.
Indeed, Mother objected to Foster’s disputed truthfulness testimony at trial on the
basis of improper speculation and lack of foundation. On appeal, Mother now
asserts that Foster’s testimony regarding the amount of confidence that could be
placed in her trial testimony was a direct opinion on her truthfulness and was
inadmissible under Rule 702. Tex. R. Evid. 702. The trial court was not given
the opportunity, in the first instance, to address Mother’s argument attacking
23 Foster’s expert opinion; therefore, Mother failed to preserve this possible error for
our review. See Tex. R. App. P. 33.1(a)(1); Diaz-Gomez v. State, No. 05-09-
01371-CR, 2011 WL 2279185, at *2 (Tex. App.—Dallas June 10, 2011, pet. ref’d)
(mem. op., not designated for publication) (holding lack-of-foundation objection to
expert’s truthfulness testimony does not preserve appellate argument that expert
may not testify as to other witness’s truthfulness); Oliver v. State, 32 S.W.3d 300,
303–04 (Tex. App.—San Antonio 2000, pet. ref’d) (holding to preserve error,
complaint regarding expert’s testimony about credibility of witness must be
subject of trial objection). See generally In re B.L.D., 113 S.W.3d 340, 349–50
(Tex. 2003) (holding preservation requirements apply in termination cases), cert.
denied, 541 U.S. 945 (2004). We overrule issue two.
2. Alternative Harm Analysis
Even if Mother preserved this issue for our review, she cannot show the
required harm arising from the alleged trial-court error. To obtain reversal of a
judgment based upon an error in the trial court, Mother must show that the error
occurred and that it probably caused rendition of an improper judgment or
probably prevented the appellant from properly presenting the case to this court.
See Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d
212, 225 (Tex. 2005). We will not reverse a trial court’s judgment because of an
erroneous evidentiary ruling unless the ruling probably caused the rendition of an
improper judgment. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.
2012). Normally, this would require a showing that the whole case turned on the
24 evidence at issue. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001) (op. on reh’g).
The evidence admitted at trial, which we recite above, reveals that Mother
admittedly placed or allowed her children in dangerous situations and that
termination was in the best interest of V and E. Further, the case worker testified
that Mother repeatedly lied to her during DFPS’s investigation. During Mother’s
testimony, she admitted that she continued to have contact with known felons,
but she stated she would stop if V and E were returned to her, even though she
did not think about severing those relationships after V and E were removed.
DFPS did not stress Foster’s testimony in closing arguments, other than
obliquely referring to the fact that Mother failed to change and continued the
same manipulative behavior that led to DFPS’s termination suit. We conclude
that even if admission of Foster’s challenged testimony was erroneous, Mother
has failed to show harm from the error.
IV. CONCLUSION
Having overruled Mother’s two issues, we affirm the trial court’s judgment.
LEE GABRIEL JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: September 26, 2013