TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00165-CV
Jessica Wischer, Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
NO. 01-595-FC1, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Following a jury trial, the trial court rendered judgment terminating Jessica Wischer's
parental rights to her three children. The jury found that Wischer failed to comply with the
provisions of a court order that specifically established the actions necessary for her to be reunited
with her children following removal by the Texas Department of Family and Protective Services (the
"Department") and that termination of her parental rights was in the children's best interests. See
Tex. Fam. Code Ann. § 161.001(1)(O) & (2) (West Supp. 2011). In two issues on appeal, Wischer
challenges the legal and factual sufficiency of the evidence to support the jury's best-interest
findings. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Department first became involved with Wischer and her family in August 2008,
after receiving a report of domestic violence between Wischer and Mychal Davis, the father of her
two youngest children. At the time, Wischer had long-term, stable employment, a nice home
purchased for her by her parents, and financial and child-care assistance from her parents. However,
she was largely caring for her children--eight-year-old J.S., two-year-old J.M.D.-1, and
four-month-old J.M.D.-2--as a single parent because Davis had recently been imprisoned on a
forgery conviction and J.S.'s father, Jacob Sandoval, was not involved in parenting. During the
initial investigation, Wischer reported to the Department that she was extremely stressed and anxious
about her solo parenting responsibilities and that she had made at least two suicidal gestures in the
recent past due to postpartum depression. She denied the existence of domestic violence in the home
but admitted that she and Davis would occasionally push and shove each other during arguments.
At some point, the Department also discovered that Wischer and Davis were habitual marijuana
users, although Wischer denied any drug use in the children's presence or while she was pregnant.
In an effort to assist Wischer, the Department offered various services to her and kept
tabs on the family via weekly home visits. Davis was released from prison in October 2008 and
returned to the home he shared with Wischer and the children.
In December 2008, Wischer voluntarily entered into a "Child Safety Evaluation and
Plan" with the Department. The terms of the safety plan were primarily directed to concerns about
Davis. Specifically, during a six-week period, Wischer was required to supervise all contact between
Davis and the children, and Davis was required to submit to drug and alcohol assessments and
random drug testing. Contrary to the safety plan's requirements, however, Davis tested positive for
marijuana use, and Wischer allowed Davis unsupervised contact with the children. Although these
facts are undisputed, the extent of the contact is in dispute. Wischer admitted that she allowed Davis
to take the children to the doctor for immunizations while she was suffering from the flu, but she
denied allowing him to drop the children off at day care on an occasion when she was not present.
Nevertheless, based on the undisputed violations of the safety plan, the children were removed from
Wischer's care in February 2009 and ultimately placed in their maternal grandparents' care. At that
time, the court ordered Wischer, Sandoval, and Davis to comply with the terms of service plans
provided by the Department and, among other things, expressly ordered all parties to refrain from
illegal drug use and to submit to inpatient drug treatment upon testing positive for drug use.
During the months that followed, Wischer repeatedly tested positive for marijuana
use and was ordered to enter drug-rehabilitation treatment in December 2009. While Wischer was
in treatment, the children's grandparents allowed them to have a supervised visit with Wischer at the
treatment facility, which apparently violated the terms of the Department's placement agreement
with the grandparents. In addition, over the Christmas holidays, the children's grandfather took J.S.
on an overnight trip out of state without first obtaining permission from the Department, which was
alleged to be a further violation of the placement agreement. Due to these violations and the
Department's impression that the grandparents favored J.S. over J.M.D.-1 and J.M.D.-2, the children
were removed from their grandparents' care and placed with a foster family in January 2010. (1)
Following Wischer's discharge from drug-rehabilitation treatment in December 2009,
she tested positive for marijuana use on two occasions--once in December 2009 and once in
January 2010, with two negative test results in between--but she remained clean thereafter and
began to work her court-ordered service plan. (2) Based on Wischer's compliance with the service plan
and positive improvements in areas of concern, the Department allowed the children to be returned
gradually to Wischer's care under an "Order for Monitored Return of the Child," which expressly
prohibited the children from having any contact with their biological fathers and their maternal
grandparents. Pursuant to the monitored-return order, Wischer's eldest child, J.S., was returned to
her care in August 2010, but before she could resume care of the younger children, the Department
discovered that Davis was living in Wischer's home in violation of the court's order. Consequently,
J.S. was again removed from Wischer's care in September 2010 and returned to the foster family that
was also caring for his siblings.
In February 2011, the trial court named the Department the children's permanent
managing conservator in a "Final Order in Suit Affecting Parent Child Relationship" ("final order").
The final order named Wischer possessory conservator and conditioned reunification with the
children on a number of requirements, including completion of tasks outlined in a "Family Service
Plan" that was attached to the final order and incorporated by reference. Non-compliance with the
terms of the final order is the basis of the Department's action to terminate Wischer's parental rights.
Although the Department questioned the sincerity of Wischer's efforts to comply with the final order
and found inconsistencies relating to her attendance at sobriety meetings, the Department concedes
that Wischer substantially complied with the requirements in the final order except the requirement
that she
not associate, reside, or cohabitate with Jacob Sandoval, Mychal Davis, or any other
person who has been arrested, charged or convicted of an offense involving illegal
drugs, a felony offense, assaultive offense or harm to any child OR any person who
has had their children removed from their care because of abuse or neglect. (3)
There is neither allegation nor evidence that Wischer resided or cohabitated with any person in
violation of the final order. However, it is undisputed that Wischer received at least three phone
calls from Davis totaling up to twelve minutes of talk time over the course of several months in
2011. (4) She claimed to have taken Davis's calls only to discourage any further contact by him and
she explained that she had not changed her cell phone number because (1) she had not been asked
to do so and (2) it would not have prevented Davis from finding ways to contact her if he so desired.
In addition, she admitted that an outgoing phone call of up to 1 minute was made from her cell phone
to Davis, but she maintained that it was an accidental or inadvertent misdial and she only had
Davis's phone number programed into her phone so she could identify and avoid his calls.
There was also some evidence of contact with Sandoval via his Facebook page.
Specifically, in December 2011, Sandoval posted a query on his Facebook page--"Can anybody tell
me where all the Ladys [sic] are . . ."--to which Wischer appears to have responded, "They Hidin
From You!! [sic]." Wischer contends that a co-worker used her phone to post the comment as a
prank on her, and she attempted to bolster her story with evidence of the co-worker's having used
her phone on another occasion to post a comment to her own Facebook account. In addition,
Wischer admitted that she pursued a romantic relationship with a man who had an "extensive"
criminal history, but she asserted that she did not know he had a criminal history, the relationship
lasted only a few months, and she had terminated contact upon learning of the man's criminal
history. Finally, Wischer admitted to establishing a casual friendship with a woman who
was involved in proceedings with the Department involving removal of her own children on
child-endangerment grounds.
Two weeks before trial, the Department recommended that Wischer be reunified with
her children, but based on the foregoing violations of the final order and consultation with J.S.'s
therapist, the Department rescinded the recommendation and proceeded with its action to terminate
Wischer's parental rights based on noncompliance with the final order. See id. The Department
asserted that the violations of the final order went "to the heart" of the concerns about Wischer's
parenting abilities.
After a four-day trial on the merits, a jury found that Wischer had not complied with
the final order and that termination of her parental rights was in the children's best interests. See id.
In accordance with the jury's verdict, the trial court rendered judgment terminating Wischer's
parental rights to J.S., J.M.D.-1, and J.M.D.-2 and appointing the Department permanent managing
conservator of the children.
On appeal, Wischer challenges only the factual and legal sufficiency of the evidence
to support the best-interest finding. (5)
DISCUSSION
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 (1982). "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).
Termination of parental rights is a drastic remedy in which the parent and child are permanently
stripped of all legal rights, privileges, duties, and powers normally existing between them, except
for the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008). Due to the
significance of the interests at issue and the gravity of the remedy sought in termination proceedings,
we strictly scrutinize such proceedings in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21
(Tex. 1985).
To appropriately balance the interrelated and correlative interests affected in
termination proceedings, the parent-child relationship cannot be terminated unless there is clear and
convincing evidence that the parent committed one or more of the acts specifically set forth in family
code section 161.001(1) and that termination is in each child's best interest. See Tex. Fam. Code
Ann. §§ 161.001, .206(a) (West 2008). Evidence is clear and convincing if it "will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established." Id. § 101.007 (West 2008). Due process demands this heightened standard because
of the fundamental interests at issue. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
In this case, Wischer concedes that grounds for termination have been established by
clear and convincing evidence based on her violations of the final order; therefore, only the jury's
best-interest findings are at issue on appeal. Wischer contends that the evidence is legally and
factually insufficient to support the best-interest findings, in part because (1) the violations of the
final order were relatively minor compared to her substantial compliance with the extensive
requirements in the final order and the family service plan and (2) the Department lacks a concrete
plan for achieving permanency. She also asserts that evidence of the behavior that prompted the
Department's initial intervention should not be permitted to outweigh the positive improvements she
has made to achieve reunification with her children.
When evidence-sufficiency grounds are asserted on appeal, we must apply a standard
of review that reflects the clear-and-convincing burden of proof. Id. at 264-66. In reviewing the
legal sufficiency of the evidence to support a termination finding, we look at all of the evidence in
the light most favorable to the termination finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction about the truth of the matter on which the Department
bears the burden of proof. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); In re J.F.C., 96 S.W.3d at
265-66. We do not, however, disregard undisputed evidence that does not support the finding.
In re J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence, we must give
due consideration to evidence that the factfinder could reasonably have found to be clear and
convincing. Id. We must consider the disputed evidence and determine whether a reasonable
factfinder could have reasonably resolved that evidence in favor of the finding. Id. If the disputed
evidence is so significant that a factfinder could not reasonably have formed a firm belief or
conviction, the evidence is factually insufficient. Id.
Several factors are pertinent to the best-interest inquiry, including (1) the child's
desires, (2) the child's present and future physical and emotional needs, (3) the present and future
emotional and physical danger to the child, (4) the parental abilities of the person seeking custody,
(5) the programs available to assist these individuals in promoting the child's best interest, (6) plans
for the child by these individuals or the agency seeking custody, (7) the stability of the home or
proposed placement, (8) the parent's acts or omissions that may indicate that the existing
parent-child relationship is not appropriate, and (9) any excuse for the parent's acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307
(West 2008) (stating that "prompt and permanent placement of the child in a safe environment is
presumed to be in the child's best interest" and listing factors that court should consider "in
determining whether the child's parents are willing and able to provide the child with a safe
environment"). (6)
These factors are not exclusive, and no one factor is controlling. Moreover, the
absence of some factors does not bar the factfinder from finding by clear-and-convincing evidence
that termination is in a child's best interest. C.H., 89 S.W.3d at 27. Indeed, it has been held that a
single factor may be adequate in a particular factual situation to support a finding that termination
is in a child's best interest. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.--Waco 2001, no pet.),
disapproved of on other grounds by In re J.F.C., 96 S.W.3d at 267 n.39. On the other hand, the
presence of scant evidence relevant to each Holley factor will not support such a finding. C.H.,
89 S.W.3d at 27.
With these guidelines in mind, we consider the evidence adduced at trial in light of
the Holley factors. Wischer contends that this case presents a tale of two mothers--one with a
troubled past and one on the road to redemption. One of the core disputes in this case is the extent
to which a jury could have found that the sins of the past have roots in the present and pose a risk
of physical and emotional danger to the children now and in the future.
When the Department first began working with Wischer nearly four years ago, she
had a long history of daily marijuana use and was less than forthcoming with this information. She
was also in a relationship with Davis and exposed her children to him even though he was a habitual
marijuana user with a criminal conviction for forgery. Of significant concern to the Department and
the children's therapists, there were incidents of domestic violence in the children's
presence--Wischer conceded that Sandoval had once thrown a full beer can at her, prompting her
to terminate her relationship with him; Wischer admitted to altercations with Davis involving
shoving and pushing and also admitted to slapping him at least once; there is some evidence of daily
fights between Wischer and Davis, possibly involving fists; and it is without dispute that Davis once
threw a spoon into another room during an argument with Wischer and the spoon hit J.M.D.-1 in the
stomach. In addition, Wischer confided that she was stressed and anxious about her parenting
responsibilities and was candid about attempting to strangle herself with a seat belt in front of her
mother and infant daughter on one occasion and threatening to do so on another. She also confessed
to frustration and difficulty coping with J.M.D.-1's behavior issues.
Even after receiving services from the Department, Wischer struggled. She continued
to abuse drugs and violated more than one safety plan designed to protect the children from exposure
to individuals who were using drugs and had criminal backgrounds. She also sabotaged the
Department's prior attempts at reunification by immediately allowing Davis to resume living with
her in direct violation of a court order, and when the truth was discovered, she lied to the Department
to cover it up.
In contrast to where she started, however, Wischer arguably had made significant
strides in attaining positive improvements in her life in the two-year period preceding termination
of her parental rights. She obtained and sustained sobriety for more than two years, up to and
including the termination trial. She participated in all services required by the Department, including
domestic violence and protective parenting courses, individual and family therapy, and sobriety
programs. There was neither evidence nor allegation of domestic violence since the initial
investigation by the Department. Moreover, Wischer testified that she had permanently severed her
relationships with Davis and Sandoval and had recently terminated a romantic relationship because
she had discovered that her boyfriend had an "extensive" (but unspecified) criminal history. It is
undisputed--and was demonstrated at trial--that Wischer had educated herself about the challenges
of raising her children, particularly J.M.D.-1, who has had developmental delays, and J.M.D.-2, who
has been diagnosed with autism and oppositional defiant disorder.
In addition, Wischer sought treatment for her mental-health issues and is currently
taking an antidepressant under a physician's supervision. With regard to Wischer's parenting
abilities, the Department's permanency report to the court indicated that a psychologist evaluated
Wischer in March 2011, about one year before the underlying trial, and determined that she
"appear[ed] to be a potentially suitable independent parental resource." The report stated, however,
that the psychologist further opined that Wischer needed "[i]ndividual therapy [that] focuses on self
esteem and remotivation" and assistance "in studying the problematic nature of her previous
relationships, and how to modify this dysfunctional pattern she demonstrates." No suicidal
tendencies were noted.
At trial, the Department's witnesses were unable to identify any specific deficiencies
in Wischer's parenting abilities other than the "dysfunctional pattern" evident in Wischer's personal
relationships. However, the Department's primary source of concern for the children's well-being
is the impact of Wischer's destructive relationships, and there is some evidence in the record that
Wischer had not significantly improved in that regard. It is undisputed that Wischer had some
contact with both Sandoval and Davis, because she had not taken adequate steps to ensure that her
ties to them were severed--she remained "Facebook friends" with Sandoval and did not change her
cell phone number so that Davis could not continue to contact her. Although the contact with
Sandoval and Davis was limited, it violated the express terms of the final order. That contact,
considered in light of her concurrent romantic involvement with an established criminal and
friendship with a woman who lost custody of her own children on child-endangerment grounds,
could indicate a fundamental failure to fully address the core issues that prompted the Department's
intervention in the first instance. According to the caseworker and two of the children's therapists,
Wischer's failure to inquire about her most recent boyfriend's criminal history while pursuing a
relationship with him reflected an inability to act as an appropriately protective parent. Both
therapists were adamant that it would not be in a child's best interest to be placed with a parent who
is unable to exercise good judgment in her personal relationships, especially when there has been a
history of domestic violence and exposure to individuals engaging in criminal behavior that included
chronic drug use.
The Department argued, and the jury apparently found, that Wischer's deviations
from the requirements in the final order indicated that Wischer continued to retain her old behavior
patterns and had not effectively "internalized" the changes necessary to be a protective parent to her
children. A Department supervisor testified that the Department's basic concern was that
[Wischer] seemed to be passively accepting [Davis's] contact with her. And not
taking assertive action to stop it even knowing she was violating a court order and
knowing that we had just received permanent managing conservatorship of the
children. And . . . we were giving her a service plan with the opportunity to work
toward getting [the children] back. And she was still violating the plan.
In other words, although Wischer's violations of the final order appear facially minor, her continued
contact with persons of questionable character was consistent with her prior behavior, and the jury
could reasonably have assigned greater significance to the violations based on her prior conduct.
This is especially true in light of testimony from the Department caseworker, her supervisor, and the
children's therapist's that termination of parental rights would be in the children's best interests
because Wischer failed to internalize the cognitive and behavioral changes necessary to protect the
children from further exposure to domestic violence, drug abuse, and unsavory characters. While
Wischer characterizes the past instances of domestic violence as "minor," the jury was free to view
it differently. Moreover, a factfinder may infer that past conduct endangering the well-being of a
child may recur in the future if the child is returned to the parent. See In re D.L.N., 958 S.W.2d 934,
940-41 (Tex. App.--Waco 1997, pet. denied), disapproved of on other grounds by In re J.F.C.,
96 S.W.3d at 267 n.39, and In re C.H., 89 S.W.3d at 26; see also May v. May, 829 S.W.2d 373, 377
(Tex. App.--Corpus Christi 1992, writ denied) (observing that past misconduct or neglect does not
necessarily show present unfitness, but it is permissible to infer that "an adult person's future
conduct may well be measured by his recent deliberate past conduct as it may be related to the same
or a similar situation"); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.--Waco 1992, no writ) ("Past
is often prologue.").
In addition to the technical violations of the final order, the jury heard evidence that
Wischer failed to maintain contact with the children after she was told she could write them
letters in May 2011. After being so advised, she sent letters to the children only two times--in
September 2011 and November 2011. Wischer's caseworker testified that when she inquired about
additional letters, Wischer replied that "she would get them to me or that she would try to write them
or she was busy and sometimes she would not really respond." Her caseworker also testified that
Wischer's communications with the Department rarely involved inquiries about the children and that
she seemed to be most concerned about the impact the case was having on her. The caseworker
related that
Ms. Wischer doesn't seem genuinely interested in her children. In my experience
with her, she seems much more focused on the negative impact this case has had on
her and doesn't seem to really take the extra step to focus on how her kids are doing
or to take advantage of different opportunities that are provided to her to have contact
with her children.
While Wischer's apparent diligence in complying with the majority of the requirements in the final
order and service plan could suggest the contrary, the jury need not have disregarded the
caseworker's opinion, which was based on her experiences and interactions with Wischer over an
extended period of time.
On the positive side, there is considerable evidence that Wischer had maintained a
level of long-term stability in a number of areas and had an adequate support system. She had been
employed at CVS pharmacy for fourteen years, was able to provide a nice home in a decent
neighborhood, and had parents who were willing to assist her both financially and in caring for the
children. Notably, Wischer had abandoned her long-term drug use and maintained sobriety for more
than two years. This is not an insignificant accomplishment, and we believe that the stability
Wischer demonstrated in her rehabilitation from drug use renders the evidence of her past drug abuse
of little probative value; however, we cannot say that it is so attenuated that the jury could not have
given it any weight in considering the children's best interests.
Likewise, the jury could reasonably have disregarded Wischer's excuses or
explanations for her contact with Sandoval, Davis, and her most recent boyfriend, especially in light
of testimony from the Department caseworker and J.S.'s therapist that Wischer had a history of
dishonesty. Moreover, Wischer provided no excuse or explanation for maintaining a friendship with
a person who had lost custody of her own children for child endangerment except that "[i]t's nice
to be able to talk to somebody who had similar issues." The jury could reasonably have concluded
that Wischer continued to exercise poor choices regarding her personal associations, which
endangers her children's physical and emotional well-being now and in the future.
The evidence regarding the children's desires is equivocal. At the time of the trial,
J.S. was eleven years old and suffered no apparent impediments to communicating his desires;
J.M.D.-1 was five years old and had some speech delays that were being addressed through therapy;
J.M.D.-2 was three years old and, in addition to being very young, has been diagnosed with autism
and has significant deficiencies in verbal skills. Neither the children nor their foster parents testified,
and no guardian ad litem was called to testify on their behalf. However, a Department caseworker
and two of the children's therapists testified regarding the quality and extent of the relationships
between the children and their foster parents.
The caseworker testified that (1) J.S. "tends to be a bit ambivalent [and said he'd] be
fine with going home if his mom had cable television"; (2) J.M.D.-1 is "very bonded to her foster
home" and she "seemed okay to be there [but] she [also] seemed okay to go home"; and (3) "it was
very difficult to assess [J.M.D-2's] input" due to her age, but she seemed comfortable in the foster
home and likes to sit in the foster mother's lap. She further testified to the progress the children have
made in therapy and with their developmental deficiencies while in foster care. This testimony was
echoed by the therapists for J.S. and J.M.D.-1.
J.M.D.-1's therapist further testified that she calls her foster mother "mom mom,"
identifies her foster mother as her mother, and has few memories of Wischer. J.S.'s therapist
testified that J.S. had "processed through" his relationship with his mother and has "moved on." She
also related that J.S. felt reunification would ultimately fail. In the therapist's opinion, J.S. feared
that his mother would continue to give the Department justification for removing the children from
her care.
Despite the children's apparent contentment in the foster home and the younger
children's bond to their foster family, the evidence established that the foster placement would be
temporary. Indeed, it was expected that at least one of the children--and perhaps all of
them--would be removed from the foster family in the near future due to licensing limitations on
the number of paid foster children permitted to be in the family's home. In addition, the foster
parents were not willing to adopt the children. Nevertheless, there was no evidence of any
appreciable bond between the children and their mother, who had not seen them in over eighteen
months, (7) and no evidence of their desire to return to her other than indifference. In general, the
evidence showed that the children are happy in the foster home, but that the placement was likely
to be an impermanent situation.
The impermanency of the Department's plans for placement is one of the central
issues Wischer raises concerning the jury's best-interest findings. Department witnesses--including
J.S.'s therapist and J.M.D.-1's therapist--testified that the children desperately need stability in their
lives, and there were also several witnesses who testified that adoption provides the best option for
achieving permanency given the prior removals from Wischer's care and indications that she has not
processed the changes necessary to avoid future removals. Although no adoptive family had been
identified and there is admittedly no guarantee that the children would ever be adopted, the
caseworker's supervisor testified that the children are "very adoptable" as "a sibling group." The
supervisor further testified that the Department had examined all options for relative placement, but
were unable to find a relative willing or able to care for the children; however, once the children are
placed in an adoption unit, additional resources would be available to help identify kinship
placements. (8) The Department caseworker, her supervisor, and J.S.'s therapist all testified that
termination of Wischer's parental rights is essential to achieving permanence and stability in the
children's lives. Indeed, the supervisor strongly favored adoption over reunification to the point of
stating that it would be better for the children to be split up than to be reunited with their mother.
There was some evidence that monitored return is an alternative to termination of
parental rights that could achieve permanency on a more certain time-frame. Both J.M.D.-1's
therapist and the caseworker testified that monitored reunification could provide for a permanent
placement within three to twelve months but only if reunification with Wischer was otherwise in the
children's best interests. In that regard, there is evidence that (1) Wischer had a history of dishonesty
that made it difficult to adequately evaluate her parenting capabilities and the likelihood of
successful reunification, (2) the children had already been repeatedly unsettled over a nearly four-year period, and (3) Wischer lacked the ability to internalize the cognitive and emotional
changes necessary to ensure the children's long-term stability in her care. The caseworker's
supervisor testified:
The pattern [of behavior Wischer] has exhibited during the past three-and-a-half
years and learning about this new relationship [with a man with an extensive criminal
record] and the risk [to the children and] how that speaks to the pattern that has
already been exhibited. . . . I know the children need permanency, and I do believe
that it is in their best interest that her rights be terminated so they can achieve
permanency and be in a safe home.
. . . .
We absolutely do not want to place these children at risk. They have been through
way too much. It would be extremely detrimental to their well-being, as everyone
has testified, for there to be continued changes where there would be a risk of harm
and they would have to be removed.
And, as alluded to in the foregoing excerpt, other witnesses testified similarly.
There is a strong presumption that a child's best interest will be served by preserving
the parent-child relationship, see In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam), and
parental rights may not be terminated merely because a child might be better off living elsewhere.
In re D.M., 58 S.W.3d 801, 814 (Tex. App.--Fort Worth 2001, no pet.). Nevertheless, a factfinder
can consider that a child's best interest may be served by termination of parental rights so that
adoption may occur rather than the impermanent foster-care arrangement that would result if
termination were not ordered. D.O. v. Texas Dep't. of Human Servs., 851 S.W.2d 351, 358 (Tex.
App.--Austin 1993, no writ), disapproved of on other grounds by In re J.F.C., 96 S.W.3d at 267
n.39. In considering a child's present and future emotional and physical needs, the need for
permanence is of paramount importance, and in the end, if there are competing interests, a parent's
interests must yield to the child's best interest. See Dupree v. Texas Dep't of Protective & Reg.
Servs., 907 S.W.2d 81, 86-87 (Tex. App.--Dallas 1995, no writ).
On the whole, the evidence regarding the best course of action for the children was
conflicting, but it was within the jury's province to give more credit to the Department's plans
for adoption over reunification with Wischer. See In re B.S.W., No. 14-04-00496-CV,
2004 WL 2964015, at *9 (Tex. App.--Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.)
(parent's failure to show stability to parent "for any prolonged period" entitled factfinder "to
determine that this pattern would likely continue and that permanency could only be achieved
through termination and adoption").
Considering the evidence in light of the Holley factors, this is a close case. However,
giving full consideration to the disputed and undisputed evidence and inferences, we hold that the
record contains sufficient evidence for a reasonable fact-finder to form a firm conviction or belief
that termination of Wischer's parental rights is in the children's best interests. Based on the
evidence, the jury could properly conclude by clear and convincing evidence that: (1) Wischer's
conduct in the past endangered the children's physical and emotional well-being and may recur in
the future if the children are returned to her; (2) Wischer lacks the ability to provide adequate care
by showing poor judgment currently and in the past; (3) Wischer may be unable to meet the physical
and emotional needs of the children now or in the future, especially considering the children's
special needs; and (4) Wischer will be unable to provide the children with permanency or stability
given the outcome of prior opportunities for reunification and repeated patterns indicating poor
judgment. This is not a situation in which irrelevant past acts are given undue weight; it is a
situation in which there is sufficient clear and convincing evidence that present conduct--despite
years of services and knowledge that reunification was at stake--creates a genuine risk that past
endangering conduct would be likely to continue into the future.
Although the record shows considerable positive improvements Wischer has made
in the past two years and significant compliance with the final order, the jury could have determined
that Wischer had not sufficiently improved in terms of her ability to be an appropriately protective
parent, which includes providing a safe home environment, protection from exposure to violence,
and stability. On appeal, we may not substitute our judgment based on our review of the written
record in place of the findings of a jury that heard live testimony and found by clear and convincing
evidence that Wischer's parental rights should be terminated. We overrule Wischer's
appellate issues.
CONCLUSION
For the reasons stated, we affirm the trial court's judgment terminating Wischer's
parental rights to J.S., J.M.D.-1, and J.M.D.-2.
_________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Affirmed
Filed: August 29, 2012
1. Elizabeth Byrd, the caseworker assigned to the case, also testified that it was difficult to
work with the grandparents "in a collaborative way to meet the needs of the children," stating
[The children's grandfather] was frequently very confrontational and almost attacking
on the phone. He seemed to question every recommendation of the Department. . . .
As I recall, [J.S.] was not in therapy[,] which was something that was asked of him.
And they had--later on we found out that [the grandparents] had declined [early
childhood intervention] services for [J.M.D.-2]. So just overall it didn't seem
like the placement was willing to work with the Department to meet the needs
of the children.
2. The Department conceded that the December 2009 positive test result could have resulted
from residual marijuana metabolites in her system. Wischer blamed the January 2010 positive test
result on a "weight-loss cleanse" she was doing, which she contends caused stored marijuana
metabolites to be released from her liver, resulting in a positive test result. The Department found
Wischer's claim not to be credible, and there is no evidence in the record bearing on the scientific
plausibility of Wischer's claim.
3. The order also prohibited contact between the children and their biological fathers and
maternal grandparents and imposed the following additional requirements on Wischer:
1. Attend and complete a protective parenting class;
2. Attend regular therapy sessions until successfully discharged by the therapist;
3. Submit to random drug tests;
4. Obtain and maintain regular and consistent employment;
5. Pay court-ordered child support;
6. Provide safe and stable housing;
7. Participate in therapy with the children and their therapists as requested by
the therapists;
8. Abstain from the use of illegal substances and alcohol;
9. Take all medication properly as prescribed by physicians;
10. Attend all permanency and family group conferences requested by
the caseworker;
12. Participate in an annual psychological examination with a psychologist
designated by the caseworker; and
13. Abstain from any criminal activity and notify the caseworker within 48 hours
of being arrested for any offense.
The court's order also required Wischer's compliance with and successful completion of the
following tasks outlined in the family service plan:
1. Sign and not revoke all necessary releases of information for the Department;
2. Provide proof of weekly attendance at a local support group for children who
have been sexually abused and be able to articulate the impact of sexual
abuse and demonstrate knowledge of the subject;
3. Complete a psychological evaluation and parent assessment with a
designated psychologist and comply with all recommendations in the
psychological evaluation;
4. Complete a psychiatric evaluation with a designated psychiatrist and comply
with all recommendations of that evaluation including taking prescribed
medications;
5. Submit to random drug testing;
6. Participate in weekly individual counseling sessions with designated
therapist, take responsibility for negative choices, articulate what positive
changes are being made in her life, and follow the therapist's
recommendations;
7. Provide the Department with a written impact statement and statement
showing an understanding of what each child needs emotionally and
physically now and in the future;
8. Attend Alcoholics Anonymous, Narcotics Anonymous, or Marijuana
Anonymous meetings twice per week, provide proof of attendance,
and obtain a 12-step sponsor willing to provide information to the
Department; and
9. Read four books recommended by J.M.D.-2's therapist regarding autism and
Asperger's Syndrome and provide written reports to the Department
demonstrating what she learned from the books.
Wischer was required to bear the costs of all services required under the family services plan and
apparently did so.
4. The record is less than clear regarding the number and duration of the calls. Wischer's
phone records from September to December 2011 were introduced at trial, and four separate
incoming calls totaling twenty-one minutes from three different telephone numbers are highlighted
on those records. However, the evidence at trial links only three of the calls to Davis's cell or work
phone numbers, which total up to twelve minutes in duration. On appeal, the Department cites only
two calls totaling up to seven minutes, but Wischer's appellate brief refers to five phone calls
totaling up to thirty minutes in duration.
5. Neither Davis nor Sandoval are parties to this appeal. Davis's parental rights to J.M.D.-1
and J.M.D.-2 were terminated after a bench trial in February 2011, at which he failed to appear.
Sandoval voluntarily relinquished his parental rights to J.S. in January 2010.
6. The factors identified in section 263.307 of the family code include: (1) a 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 an initial report and intervention; (5) whether the child is afraid to
return 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 has
been identified; (10) the willingness of the child's family to seek out, accept, and complete
counseling and cooperate with supervising agencies; (11) the willingness and ability of the child's
family to effect positive environmental and personal changes within a reasonable time; (12) whether
the child's family demonstrates adequate parenting skills, including providing the child with
adequate health and nutritional care, care and nurturance consistent with the child's development,
guidance and supervision for the child's safety, a safe physical home environment, protection from
exposure to violence even if not directed at the child, and 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. Tex. Fam. Code Ann. § 263.307(b) (West 2008).
7. There is no indication that Wischer was permitted visitation but failed to take advantage
of it; however, there is evidence that Wischer was allowed to maintain contact with the children via
letters and did so only minimally.
8. Wischer's father testified that he and his wife would take the children "in a heartbeat."
Apparently based on the children's prior placement with their maternal grandparents, the Department
did not appear to consider this a viable option for adoption.