in the Interest Of: D.W.

AFFIRM; and Opinion Filed October 10, 2014.

Court of Appeals
S In The

Fifth District of Texas at Dallas
No. 05-14-00871-CV

IN THE INTEREST OF D.W., J.L., V.T., R.W., KE.W., KA.W., B.W.,
AND A.W., MINOR CHILDREN

On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 12-1043-W

OPINION
Before Chief Justice Wright and Justices Fillmore and Evans
Opinion by Justice Fillmore

T.W. appeals the termination of her parental rights to eight of her children, D.W., J.L.,

V.T., R.W., Ke.W., Ka.W., B.W., and A.W., contending the evidence was factually insufficient

to support the jury’s findings that termination is in the best interest of the children.1 We affirm

the trial court’s judgment.

Background2

On September 17, 2012, Angel Martin, who was an investigator with the Texas

Department of Family & Protective Services (the Department), received a referral that T.W. was

1
In addition to the brief filed by T.W.’s counsel, T.W. has submitted a pro se “Amendment Brief.” There is no provision in Texas law for
hybrid representation enabling both an appellant and her attorney to file separate briefs. See Posner v. Dallas Cnty. Child Welfare, 784 S.W.2d
585, 588 (Tex. App.—Eastland 1990, writ denied) (per curiam); see also In re R.A.P., No. 14-06-00109-CV, 2007 WL 174376, at *1 n.1 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (mem. op.). Therefore T.W.’s pro se brief presents nothing for our review. See Posner, 784
S.W.2d at 588.
2
J.L.’s father died prior to trial. M.W., who was the father of the five youngest children, L.W., who was D.W.’s father, and V.T., Sr., who
was V.T.’s father, did not appear at trial on February 24, 2014. Prior to trial of the Department’s petition to terminate T.W.’s parental rights, the
trial court heard evidence and found M.W.’s, L.W.’s, and V.T., Sr.’s parental rights should be terminated.
living in a shelter, was running away from an abusive husband, and had eight children. Martin

was told that T.W. had reported she had mental health issues that were not being treated. Martin

went to the shelter to interview T.W. about where she was going to live and to determine

whether there were services that could be offered to her. T.W. was not at the shelter and did not

answer her telephone. When Martin was unable to locate T.W., she attempted to locate the

children. The oldest three children were enrolled in school, but were absent that day.

On September 19, 2012, Martin received a referral that T.W. had left her eight children,

ranging in age from five days old to nine years old, in a van parked at Children’s Medical Center.

Chnibre Yarbrough, a security officer at Children’s Medical Center, testified T.W. did not return

for over an hour after security was contacted by an individual who saw the children alone in the

van. By that time, the door to the van had been opened with a “Slim Jim” and the children had

been taken into Children’s Medical Center. A security guard remained at the van and directed

T.W. into Children’s Medical Center when she returned.

Yarbrough testified T.W. told him her friend “Marie” or “Maria” had agreed to watch the

children while T.W. was seeking treatment in the adjacent Parkland Hospital. T.W. indicated

“Marie” had said she was on her way to the van and that T.W. could go into Parkland. T.W. told

Martin that her friend “Shanasty” had agreed to watch the children while T.W. was being treated

in Parkland for bleeding following the birth of her child. Neither Martin nor Yarbrough were

able to locate the person T.W. claimed was to watch the children.

Yarbrough testified the children were dirty and the younger ones needed to have their

diapers changed. The children had fungal infections on their heads and were missing patches of

hair. Although T.W. claimed the three oldest children were not in school because they had

diarrhea, none of the children complained about a stomach illness and the medical staff at

Children’s Medical Center told Martin that none of the children had diarrhea.

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 T.W. told Martin she was “running away” from her abusive husband, M.W. T.W. said

M.W. choked her while she was pregnant and that she had obtained a protective order against

him. T.W. also told Martin that, based on a complaint filed by M.W.’s family with the Arkansas

“CPS,” the children had been removed from her care in Arkansas and placed into foster care.

T.W. retained an attorney, and the children were returned to her.

The Department removed the children from T.W.’s care and contacted one of T.W.’s

cousins about caring for the children. After the cousin declined to take the children, T.W.

refused to provide the names of any other relatives who might take the children and refused to

cooperate with the Department’s efforts to place the children. The children were placed into

foster care. When the children were transported to their foster homes, the older children reported

fighting between their parents.

On September 20, 2012, the Department filed its original petition for protection of the

children, for conservatorship, and for the termination of T.W.’s and the children’s fathers’

parental rights. At a hearing on October 17, 2012, the trial court ordered T.W. to complete

parenting classes, a psychological evaluation, and individual counseling and to comply with any

recommendations she received based on her participation in these services. Further, because

there was evidence of domestic violence, the trial court ordered T.W. to obtain domestic violence

counseling and ordered M.W., T.W.’s husband and the father of the five youngest children, to

complete a Batterer’s Intervention Prevention Program.

Katrina Trotman, a conservatorship specialist with the Department, was assigned to the

case following the hearing. Trotman testified T.W. was very hostile in her communications with

the Department and initially refused to participate in any of the court-ordered services. T.W.

eventually began to participate in the ordered services and, on March 10, 2013, completed a

parenting class in Arkansas. According to Trotman, it was not clear this class was comparable to

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the class the trial court ordered T.W. to attend in Texas. T.W. also underwent a psychological

evaluation in Arkansas. Trotman discussed T.W.’s psychological evaluation with the

psychologist, and testified the psychologist recommended that T.W. participate in counseling.

However, T.W. failed to consistently attend her counseling appointments and was discharged

from counseling due to her failure to participate.

According to Trotman, the psychological evaluation showed that T.W. had some mental

health issues and recommended a psychiatric evaluation as well as medication for emotional

disorders. In Trotman’s opinion, it is a danger to a child for a parent to have an untreated

emotional disorder or mental illness. Trotman testified T.W.’s behavior was erratic and she had

not shown the emotional stability needed to care for the children.

The trial court ordered that T.W. could visit the children for two hours every week at the

Department’s offices. J.L.’s father was killed prior to the first scheduled visit. Martin told T.W.

the Department had contacted a therapist to talk to J.L. about the situation because they wanted

J.L. to have some help in understanding what had happened to his father. T.W. indicated she

would make the decisions for her children. As T.W. approached the children, she took out a

cellphone and showed them something. Martin saw J.L. get a funny look on his face. T.W.

would not tell Martin what was on her phone, but J.L. later told Martin what he had seen.

T.W. did not consistently attend the scheduled visits. According to Trotman, it was

traumatic for the children when T.W. failed to come to a scheduled visit. Trotman testified T.W.

was arrested for burglary while the children were in the Department’s care. For several months,

T.W. failed to attend any visits because she was incarcerated in Arkansas. After she was

released from jail, T.W. saw the children fairly regularly for several months. Then T.W. failed to

visit the children for the next three months. M.W. attended some of the visits with T.W., and

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Trotman was concerned that T.W. had an ongoing relationship with a man she had alleged

abused her.

Trotman described T.W.’s visits with the children as “very chaotic,” with the child who

was the “squeaky wheel” receiving the most attention. During one visit, T.W. attempted to use a

“talking stick,” a technique taught in parenting classes, to control her interactions with the

children. However, the attempt was unsuccessful, and T.W. did not attempt to use the “talking

stick” in subsequent visits.

During one visit, T.W. gave D.W. and R.W. cellphones, which the children were not

allowed to have. T.W. communicated with D.W. on the cellphone, and D.W. disclosed the

location of her foster home and her school. As a result, the Department was required to move

D.W. to a different foster home. Although T.W. was told the children were not allowed to have

cellphones, she again gave the cellphone to D.W. during a subsequent visit.

According to Trotman, T.W. has become irate during visits with the children and has

“cursed out” Trotman and several of her coworkers. During one visit, T.W. became angry,

stormed out of the room with the baby in her arms, and kicked open a door in the office. During

another visit, T.W. called 911 when she was unable to soothe her crying infant. According to

Kathryn Sieling, a volunteer for Court Appointed Special Advocates (CASA), who observed the

visit, T.W. did not take responsibility for caring for the infant. Rather, T.W. became

confrontational and said the baby would not be crying if she had not been taken away from T.W.

When a staff member took the infant from T.W., the baby quieted almost immediately.

Emergency personnel responded to the 911 call and determined there was nothing wrong with

the infant.

T.W. became pregnant with her ninth child after the children had been removed from her

care. After D.W. learned at school that T.W. was pregnant and in jail, Trotman believed she had

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to tell the other children. Trotman testified that T.W. had told J.L. she was unable to have any

more children. J.L. and V.T. became very angry when Trotman told them that T.W. was

pregnant, and J.L. accused Trotman of lying

When the children were removed from T.W.’s care, D.W. was nine, J.L. was eight, and

V.T. was six. D.W., J.L. and V.T. are the oldest of the children and are receiving counseling.

J.L. and V.T. are also seeing a psychiatrist, Dr. Fernando Siles, for “medication management”

because they had extreme behavioral problems when they were removed from T.W.’s care.

According to Siles, J.L. was angry, defiant, oppositional, and had problems with lying and

stealing. J.L. was also exposed to emotional trauma when T.W. showed him pictures of his

father in a casket. Siles placed J.L. on medication for anger, for “ADHD,” and to help him sleep.

In August 2013, J.L. began “isolating” and having crying spells and excessive anxiety after

learning T.W. was pregnant. Siles prescribed an anti-depression medication for J.L. for

approximately three months. Siles also noted that someone was telling J.L. about upcoming

court hearings and that those hearings involved parental rights.

According to Siles, V.T. is a very strong-willed, very angry child. Siles is concerned that

V.T. has thoughts about wanting to hurt himself or other people with knives or weapons. V.T. is

“going through a lot of turmoil” and needs a resolution to the custody issue. Siles prescribed

V.T. medication for anger, to help him focus, and to help him sleep. V.T. also took medication

for depression for a short period of time, but the medication was discontinued due to V.T.’s

aggressive behavior. Siles then increased the dosage of the medication that helped V.T. control

his anger.

Siles attempted to be “very conservative” and not prescribe any medication J.L. and V.T.

did not need. In Siles’s opinion, the medications were medically necessary for J.L. and V.T. and

were in the children’s best interest. T.W. objected to the children receiving medication and,

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according to Trotman, told J.L. and V.T. to refuse the medications and to call 911 if their foster

parents tried to make them take it. T.W. also told K.W. not to take medication for her serious

allergies. Both J.L. and V.T. refused to take their medications for a time, but have resumed

taking them. Trotman testified that V.T.’s behavior improved when he was taking his

medications. On October 18, 2013, Siles recommended that J.L.’s and V.T.’s visits with T.W. be

“discontinued for the time being, due to the worsening of the [children’s] behavior after

visitation.”

Frank Araiza, a therapist, testified he began treating J.L and V.T. in December 2012.

According to Araiza, J.L. is a “very sad individual” whose issues include separation from T.W.

and being in foster care. V.T. is a “very angry kid” and “very aggressive.” The source of this

anger is likely being in foster care and being away from his family. Araiza testified there had

been a “lot of misconception or miscommunication” regarding the children’s visits with T.W.

and promises that the children were “going home, but it had to be up to the judge.” According to

Araiza “someone was telling them they were going to go home” and the children were

“misinformed about going home or [T.W.] doing the things she needed to” for them to go home.

Arazia believed that T.W. was telling the children that she was “doing what she was supposed to

be doing.”

Arazia testified J.L. and V.T. were upset about T.W. being pregnant. T.W. did not tell

the children that she was pregnant and “it was like deception for them” when they learned she

was pregnant. Based on statements J.L and V.T. made, Araiza believes the children were

possibly exposed to domestic violence. Trotman also testified that V.T. made statements such as

he was going to “beat [J.L.] like daddy beat momma.” According to Araiza, witnessing domestic

violence would be a traumatic experience for a child and could also be the source of J.L’s

depression and V.T.’s anger. Araiza also believed it would be detrimental to J.L. if T.W. showed

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him a picture of his father in a casket. Rather, J.L should have been told about his father’s death

in a different way.

Araiza testified that J.L. and V.T. have “made progress.” However, J.L had an episode of

depression, and V.T. is aggressive and has hit J.L. as well as children at school. V.T. also makes

verbal threats toward J.L. J.L and V.T. are in the same foster home, and Araiza believes the

home has good structure and is supportive. Araiza also believes the medications that J.L and

V.T. are taking have addressed some of the children’s emotional issues. Trotman testified the

Department would continue to provide therapy for the boys if it was granted conservatorship.

Araiza does not believe J.L and V.T. should be returned to T.W.

Trotman testified that, after a home study, D.W. was placed with her paternal

grandmother in Arkansas. T.W. did not agree with the placement. T.W. went to D.W.’s school

in Arkansas and filed complaints against D.W.’s grandmother with the Arkansas “CPS.” The

police also came to D.W.’s grandmother’s home on several occasions based on complaints made

by T.W. D.W.’s grandmother became concerned she would lose her job due to T.W.’s

complaints and requested the Department resume D.W.’s care.

Rose Obaze, a psychoanalyst, provides therapy for D.W. Obaze initially treated D.W. for

two months in 2012 after D.W. was placed in a foster home with which Obaze worked. D.W.

was removed from the home after T.W. began “stalking” the home and being disruptive. Obaze

resumed treating D.W. after her grandmother returned her to the Department’s care.

Obaze testified D.W. has behavior problems such as being rude and disruptive.

According to Obaze, D.W. is very focused on T.W. D.W. is the oldest child and is “parentified,”

meaning she is more adult-like and more responsible for other people. D.W. wants to be the

parent to the other children and has admitted she helps T.W with her siblings. D.W. craves the

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attention of peers, but does not know how to interact appropriately with them. D.W. is bossy and

demanding and has not had an opportunity to “be a kid.” D.W. once threatened to hurt herself.

T.W.’s failure to consistently visit the children has been disruptive for D.S. When T.W.

did not visit for several months, D.W. decided she wanted to live with her grandmother and

stated she was not going to “act out” and was going to do what she “was supposed to do.” This

all changed when T.W. resumed her visits with the children. Now, D.W. wants to go home with

T.W. D.W.’s old behaviors, such as being disruptive in school, have escalated. D.W. has been

diagnosed with “ADHD,” but has not been treated because T.W. opposes D.W. being placed on

medication. D.W. is unable to concentrate and focus. This is affecting D.W.’s grades at school,

and she is failing two classes.

Obaze does not believe that D.W. can be successful if she does not learn to follow the

rules. D.W.’s grandmother was willing to take conservatorship of D.W. if T.W.’s parental rights

were terminated and planned to adopt D.W. Obaze supported the Department’s plan to place

D.W. with her grandmother because it would give D.W. an opportunity to “be a kid.” Obaze

believes that D.W. needs to be in an environment where she can develop social skills and focus

on herself, rather than on her siblings and T.W. Although D.W. could live with one or two of her

siblings, Obaze does not believe that D.W. should live with all her siblings because she would

end up being the parent. Obaze believed it would be in D.W.’s best interest for T.W.’s parental

rights to be terminated.

Trotman testified the Department planned to seek permanent placements for the children

to provide them with some type of stability. According to Trotman, stability for a child is not

only having a home to live in, but having someone who is going to be caring and nurturing and

who will work with them educationally, teach them responsibility, and give them the love they

need. The Department’s plan for J.L. is adoption, but the Department would, following a home

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study, consider placing J.L. with his paternal grandparents. V.T.’s foster home has not

committed to adopting him, but has committed to allowing him to stay in the home. According

to Trotman, it might not be possible for J.L. and V.T. to stay in the same home because of their

relationship. It would be detrimental for the boys to stay together because V.T. is “really

violent” toward J.L.

At the time of trial, R.W., Ke.W., and Ka.W. had been placed with M.W.’s aunt for

approximately six months and were doing well.3 T.W. opposed this placement. B.W. and A.W.

were placed in foster homes, and the foster parents were willing to adopt them.

Trotman testified J.L. is in special education, but is doing well in his classes. None of the

other children have any special developmental needs and none of the children have any physical

limitations. According to Trotman, although the Department would like to place the children in

one home, it could be difficult to find a home that can care for all eight children. Further, the

siblings do not interact well all the time. Regardless of the final placements, the Department

would encourage the siblings to continue to have contact with each other. In Trotman’s opinion,

termination of T.W.’s parental rights was in the best interest of the children.

Although T.W. was at the courthouse on the first day of trial, she left before voir dire

began. Ginger Jones, a volunteer for CASA, testified she saw T.W. walking away from the

courthouse and informed the Department’s and T.W.’s attorneys that T.W. had left. At T.W’s

attorney’s request, Jones found T.W. and requested that she return to the courthouse. T.W.

nodded that she would do so, but did not return and was not present the first three days of trial.

Jones testified her role was to visit the children in their foster homes to determine how

they were doing and to communicate with any other individuals, such as doctors, psychologists,

3
In her brief, T.W. cites to portions of the clerk’s record post-dating the trial relating to this placement. This evidence was not before the
jury, and we will not consider it on appeal.

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or lawyers, involved in the case. During her communications with T.W., T.W. was usually very

angry and yelling about the courts and the lawyers. T.W. denied she had done anything wrong

and did not believe anyone had the right to take her children. Rather than completing her court-

ordered services, T.W. fought everything and everyone “at every turn.” T.W. did not follow the

rules and caused great disruptions during every visit with the children. T.W. also lied about

many things.

According to Jones, the uncertainty about where they would be living bothered some of

the children. J.L. and V.T. have not unpacked their clothes at their foster home. Rather, they

keep their clothes in a box because they are planning to go home. Jones testified the children

needed a stable, safe environment where their needs are provided for, they can attend school and

be helped with their school work, and they receive not only the basic necessities but

unconditional love. Jones expected this home to be free of violence and chaos. In Jones’s

opinion, T.W. has put her interest above her children “all the time” and could not provide this

type of home for the children. Jones testified CASA recommended that T.W.’s parental rights be

terminated.

Sieling testified she was appointed by the trial court to the case, along with Jones,

because there were so many children involved. Sieling does not believe that T.W. has taken

responsibility for her problems and blames everyone else for her situation. As a CASA

volunteer, Sieling is tasked to investigate all areas of the case and try to determine what is in the

best interest of the children. Sieling has never “felt comfortable enough” to recommend the

children be returned to T.W. Based on Sieling’s observations of T.W.’s visits with the children

and things the children have told her, Sieling does not believe it is in the best interest of the

children to be returned to T.W.

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 T.W. attended the fourth day of trial, and the trial court granted her request to reopen the

evidence and allowed her to testify. T.W. testified she was in court on the first day of trial, but

understood nothing was going to happen. She was under stress and did not feel well enough to

attend court. She stated, “I love me,” and “I wasn’t finna pass out in that courtroom.” T.W.

stated she had been sick with bronchitis and a stomach virus and had “to take care of [her]

health.” T.W. had not, however, sought any medical attention during the first three days of trial.

T.W. testified she and her seven oldest children came to Dallas from Arkansas in August

2012. T.W. was pregnant at the time. According to T.W., she was not trying to escape M.W.

when she came to Dallas. Rather, she came to Dallas because, when the children were in foster

care in Arkansas, R.W. got a fungus on his head that had spread to some of the other children.

The children needed medical treatment that she could not obtain in Arkansas. T.W.’s cousin and

his girlfriend offered to let the family stay with them and to help T.W. obtain medical treatment

for the children. The fungus continued to spread between the children and, after a few days,

T.W.’s cousin’s girlfriend asked the family to leave. T.W. and the children went to live in the

Family Place shelter.

On September 15, 2012, T.W. gave birth to A.W. T.W. testified that, on September 19,

2012, she was hemorrhaging and asked a worker at the shelter for a ride to the hospital. No one

at the shelter could take T.W. to the hospital and she had “no choice” but to drive herself to the

hospital with her eight children. According to T.W., the older children were not in school

because they were sick. T.W. took all of their possessions with them because the shelter was

going to spray her room for bed bugs.

T.W. testified she parked in the parking garage at Children’s Medical Center. According

to T.W., she felt as if she would “pass out,” and she “wasn’t fit” to take the children into the

hospital. She rolled down the windows of the van and placed the keys in the glove box. She

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instructed D.W. that her friend “Shauinty” was on the way and to call 911 and say that her

mother needed help. She then told D.W. that she was “about to get a security guard.” T.W. left

the children in the van “so that she could go see the security guard or the police or someone to

help get them out.” She found a security guard and returned to the van, but the children had

already been removed from the vehicle. T.W. testified that she was away from the van for

approximately five or six minutes.

After the children were removed from her care, T.W. returned to Arkansas. Throughout

the time the children were in the care of the Department, T.W. has traveled back and forth

between Texas and Arkansas. When she was in Arkansas, T.W. lived with her father, her sisters

and brothers, in a hotel, and in her home. However, her home in Arkansas has been vandalized

and is no longer habitable.

T.W. denied being offered any services by the Department after the children were

removed and did not recall being ordered by the trial court to participate in any services. She

claimed the Department did not tell her for six months what she needed to do in order for the

children to be returned to her care. She then underwent a psychological evaluation and attended

parenting classes. She also went to several counseling sessions. T.W. believes she has done

everything she needs to do to have the children returned to her.

T.W. testified she missed visits with the children during the time she was incarcerated

and when “probation got in the way.” J.L.’s father was killed shortly after the children were

removed from T.W.’s care. She took a picture of J.L.’s father’s body at the wake using the

camera on her cellphone. She did not recall if she showed J.L. that picture or what she showed

J.L. on her cellphone during her next visit with him. She told J.L. that his father had died.

T.W. admitted she gave D.W. a cellphone twice during visits, but denied being told that

D.W. having a cellphone was against the rules. T.W. allows her children to have material things,

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and D.W. asked for the cellphone. T.W. also admitted that, while D.W. was living with her

grandmother, T.W. called “Consumer Affairs” based on things that D.W. told her.

According to T.W., she called 911 during one of her visits with the children because the

baby has a milk allergy and was crying a lot. T.W. called 911 because the baby “wasn’t acting

her normal self,” not because the baby was crying. T.W. admitted the baby was fine by the time

the emergency personnel left.

T.W. admitted she was on probation in Arkansas for convictions for possession of a

defaced firearm, aggravated assault, forgery, and two felony theft-of-property offenses.

According to T.W., she would be released from probation after she finished paying $2,200 in

restitution. T.W. also admitted she had been charged with aggravated assault after she cut

D.W.’s father with a knife during a physical altercation. T.W. testified she was defending herself

and the charge was dismissed. Trotman, who had spoken with T.W.’s probation officer,

expressed concern that, under the terms of her probation, T.W. could not live in Texas.

In December 2013, with the assistance of a “Section 8” voucher she received when she

was discharged from the shelter, T.W. rented a four bedroom house in Dallas to share with the

children. However, the lease that T.W. showed to Trotman expired in January of 2014, and it

was unclear how long T.W. would continue to receive assistance to rent the house. Further,

T.W.’s probation officer required her to live with a family member while she was in Dallas so

that he could locate her.

Approximately one month before trial, T.W. obtained a part-time job in Dallas at

Brentwood Health Care. Her employer did not know she had been convicted of theft, aggravated

assault, and possession of a defaced firearm. In addition to the income she was earning, T.W.

received benefits for some of the children based on M.W.’s status as a disabled veteran. She did

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not know if the termination of M.W.’s parental rights would affect her ability to collect those

benefits. T.W. testified she would also receive “death benefits” for J.L.

T.W. planned for the five oldest children to attend public school and the three youngest

children to attend daycare. T.W. had made arrangements with a daycare provider to care for the

three youngest children while she was at work and with a neighbor for additional child care

services. T.W., however, worked evenings and had not determined the cost of care for the older

children while she worked evenings. Further, T.W.’s income did not appear to be sufficient to

pay the child care rates she had negotiated with the daycare provider for the care of the younger

children.

T.W. testified she was still married to M.W. They are separated, but trying to reconcile.

T.W. admitted M.W. had been “violent” toward her and that she obtained a protective order

against him in 2010. According to T.W., M.W. is a veteran with “PTSD” and “with the state of

mind he is in from time to time, [they are] not able to be around each other.” At the time of trial,

M.W. was in jail in Arkansas.

T.W. admitted she had “cursed a lot throughout this process” and had not been on her

best behavior since the children were removed from her care. She believes the children are

under stress because they are not with her and does not believe she has played any role in her

children being stressed. T.W. suffers from depression, but does not take medication for her

condition. She also does not want the children to take psychotropic medicine for any condition

they have because she believes it adversely affects them.

It was undisputed the children loved T.W. and were bonded with T.W. The older

children, D.W., J.L., V.T., and R.W., told several people they wanted to go home with T.W.

T.W. testified she was a good mother and just made a mistake. She requested the children be

returned to her.

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 During closing arguments, the attorney ad litem for the children and the State’s attorney

requested that T.W.’s parental rights be terminated and the Department be named the conservator

of the children. T.W.’s attorney requested the children be returned to her. Ten members of the

jury found termination grounds based on endangerment (sections 161.001(1)(D) and (E) of the

family code) and failure to follow a court-ordered reunification plan (section 161.001(1)(O) of

the family code) and that termination of the parent-child relationship between T.W. and each

child was in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (O), (2)

(West 2014). The trial court ordered the termination of the parent-child relationship between

T.W. and each child.

Analysis

A trial court may terminate the parent-child relationship if the fact finder determines (1) a

parent committed one or more of the enumerated statutory acts in section 161.001(1) of the

family code, and (2) 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). In her sole issue on appeal, T.W.

challenges the factual sufficiency of the evidence to support the jury’s findings that termination

of her parental rights is in the best interest of the children.

Standard of Review

Because the fundamental liberty interest of a parent in the care, custody, and control of

her child is one of constitutional dimensions, Troxel v. Granville, 530 U.S. 57, 65–66 (2000),

involuntary parental termination proceedings must be strictly scrutinized. In re K.M.L., No. 12-

0728, 2014 WL 4252270, at *7 (Tex. Aug. 29, 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985).4 In parental termination cases, due process requires the petitioner to justify termination

4
However, parental rights are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“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.”); see also In re A.B.,437 S.W.3d 498, 503 (Tex. 2014).

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by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001; In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)). 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.” TEX. FAM. CODE ANN. § 101.007

(West 2014); In re E.N.C., 384 S.W.3d at 802.

On appeal, we apply a standard of review that reflects the elevated burden at trial. In re

A.B., 437 S.W.3d 498, 502 (Tex. 2014). When conducting a factual sufficiency review of a

decree terminating parental rights, we give due deference to the jury’s findings and do not

supplant the jury’s judgment with our own. Id. at 503; In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006) (per curiam). We determine whether, on the entire record, “the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the State’s

allegations.’” In re A.B., 437 S.W.3d at 502 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).

“If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not reasonably have

formed a firm belief or conviction, then the evidence is factually insufficient.” In re A.B., 437

S.W.3d at 503 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

Best Interest of the Child

A judicial determination of the “best interest” of a child is “not dependent upon, or

equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such

harm. Rather, ‘best interest’ is a term of art encompassing a much broader, facts-and-

circumstances based evaluation that is accorded significant discretion.” In re Lee, 411 S.W.3d

445, 460 (Tex. 2013) (orig. proceeding) (plurality op.). In reviewing a jury’s best interest

finding, we consider several nonexclusive factors, including (1) the desires of the child; (2) the

emotional and physical needs of the child now and in the future; (3) the emotional and physical

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danger to the child now and in the future; (4) the parental abilities of the person seeking custody;

(5) the programs available to assist the person seeking custody in promoting the best interest of

the child; (6) plans for the child by the person seeking custody; (7) the stability of the home or

proposed placement; (8) the acts or omissions of the parent that may indicate the parent-child

relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239,

249 (Tex. 2013) (in reviewing a best-interest finding, appellate court “consider[s], among other

evidence, the Holley factors”). These factors are not exhaustive. In re C.H., 89 S.W.3d at 27.

Some of the listed factors may be inapplicable to a case and other factors not on the list may also

be considered when appropriate. Id. The absence of evidence about some of the factors would

not preclude a fact finder from reasonably forming a strong conviction or belief that termination

is in the best interest of the child, particularly if the evidence was undisputed that the parental

relationship endangered the safety of the child. Id. On the other hand, the presence of scant

evidence relevant to each factor will not support such a finding. Id. Evidence of one the

predicate acts for termination under section 161.001(1) may also be relevant to determining the

best interest of the child. Id. at 27–28.

While there is a strong presumption that a child’s best interest is served by maintaining

the parent-child relationship, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing

TEX. FAM. CODE ANN. § 153.131(b) (West 2014)), the 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 2014). The statutory factors to be considered in determining the best

interest of the child are (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

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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, or 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 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; and (13) whether an adequate social support system consisting of an extended family and

friends is available to the child. See id. § 263.307(b).

In answering the best interest questions in the jury charge, the jury was instructed to

consider both the statutory and Holley factors. On appeal, T.W. focuses her factual sufficiency

argument solely on the Holley factors. However, because the record contains relevant evidence

regarding the remaining factors, we shall consider them in our analysis.

The Desires of the Children

The first Holley factor is the desires of the children. None of the children testified at trial,

and a number of the children were too young to express their desires. The four oldest children,

D.W., J.L., V.T., and R.W., who were age nine, eight, six, and five, respectively, when they were

removed from T.W.’s care, told various people that they wanted to live with T.W. Even so, a

child’s preference should not be considered absent a showing of sufficient maturity, In re A.R.,

236 S.W.3d 460, 480 (Tex. App.—Dallas 2007, no pet.) (op. on reh’g), and there was no

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indication that any of the children were sufficiently mature to express a preference as to their

placement. Further, although the children appeared bonded with T.W. during visits, evidence

that a child loves a parent and enjoys visits is only marginally relevant to a best interest finding.

In re S.C., No. 07-14-00026-CV, 2014 WL 3697059, at *4 (Tex. App.—Amarillo July 23, 2014,

no pet.) (mem. op.); In re M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010, no pet.). We

conclude on the record of this case that this factor is neutral, weighing neither in favor of nor

against termination of parental rights.

Emotional and Physical Needs of the Children and Parenting Abilities

The second and fourth Holley factors are related. The second factor considers the

children’s current and future physical and emotional needs, while the fourth factor considers the

parental abilities of the person seeking custody.

The need for stability and permanence is an important consideration for a child’s present

and future physical and emotional needs. In re J.D.B., 435 S.W.3d 452, 468 (Tex. App.—Dallas

2014, no pet.); In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.)

(“Stability is important in a child’s emotional and physical development.”). Trotman and Jones

testified the children needed a stable, loving environment. However, the children’s environment

was not stable prior to their removal from T.W.’s care. The children witnessed domestic

violence between T.W. and M.W. In Arkansas, the children were removed from T.W.’s care for

a short period of time. Shortly after the children were returned to her care, T.W. brought the

children to Dallas. The family lived with T.W.’s cousin and his girlfriend for a few days and

then moved into a shelter. The children were removed from T.W.’s care after she left them alone

in the van at Children’s Medical Center.

T.W. also did not foster stability for her children while they were in the Department’s

care. T.W. did not attend all scheduled visits with the children, and the children were upset

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when she was not there. T.W. gave a cellphone to D.W. and, after learning the location of

D.W.’s foster home, disrupted the home, requiring the Department to move D.W. to a new foster

home. After D.W. was placed with her grandmother, T.W. filed complaints against D.W.’s

grandmother with the police and “CPS” in Arkansas. T.W.’s conduct was so disruptive that

D.W.’s grandmother returned D.W. to the Department’s care.

T.W. lied to her children about being pregnant with her ninth child. J.L and V.T. viewed

this conduct as deceptive, and J.L became depressed after learning the truth. T.W. also misled

the children by telling them she was doing everything that was required of her and they would be

coming home soon. Believing they would soon be returning to T.W., J.L. and V.T. refused to

unpack their clothes in their foster home.

T.W. informed J.L. about his father’s death by showing him a picture of his father in a

casket. Siles testified J.L. was traumatized by this, and Arazia testified that showing a young

child a picture of his father in a casket was not the appropriate way to inform the child of his

father’s death.

Siles testified that J.L. and V.T. had serious behavioral issues, the medications he

prescribed helped them, and the medications were in the children’s best interest. T.W. objected

to the prescribed medications and instructed J.L. and V.T. to refuse to take the medications and

to call 911 if their foster parents attempted to make them take the medications. Both J.L. and

V.T. refused their medications for a short period, causing their behavior to deteriorate. T.W.

objected to D.W. receiving medication for “ADHD.” D.W. was having difficulty focusing and

was failing two classes in school.

T.W.’s visits with the children were chaotic, and the children’s behavior deteriorated

following the visits. T.W. lost her temper during one visit and kicked a door while holding her

infant. In another visit, she called 911 because she could not soothe her baby, and the children

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saw emergency personnel responding to the call. T.W. did not seem to be able to apply the skills

she learned in her parenting class to her interactions with the children. In October 2013, Siles

recommended that J.L.’s and V.T.’s visits with T.W. stop due to the adverse effects of the visits

on the children’s behavior. See In re S.Y., 435 S.W.3d 923, 930 (Tex. App.—Dallas 2014, no

pet.) (considering mother’s failure to demonstrate improved parenting skills in best interest

analysis); In re C.N.S., No. 14-14-00301-CV, 2014 WL 3887722, at *10 (Tex. App.—Houston

[14th Dist.] Aug. 7, 2014, no pet.) (mem. op.).

T.W. failed to complete all the court-ordered services. She was hostile and aggressive

throughout the time the children were in the Department’s care. T.W. left the courthouse on the

first day of trial and did not return until the fourth day of trial. T.W. testified that she had been

too ill to attend. She stated “I love me,” and “I had to take care of my health,” but failed to seek

medical attention for her illness.

Jones and Sieling testified that, throughout the case, T.W. blamed everybody else for the

children’s removal from her care and did not take any responsibility for her actions. In Jones’s

opinion, T.W. continually put her own needs before the children’s needs and could not provide

the stable home the children required. Trotman, Araiza, Obaze, Jones, and Sieling all testified

that, in their opinion, the children should not be returned to T.W. Further, the attorney ad litem

for the children advocated that T.W.’s parental rights be terminated.

The jury heard evidence that T.W. loved her children. However, as detailed above, the

jury also heard evidence of T.W.’s inability to provide for the emotional stability and protection

of the children. As a general rule, conduct that subjects a child to a life of uncertainty and

instability endangers the child’s physical and emotional well-being. In re R.W., 129 S.W.3d 732,

739 (Tex. App.—Fort Worth 2004, pet. denied). Further, the jury could infer from T.W.’s past

conduct endangering the children’s welfare that similar conduct would recur if the children were

–22–
returned to her care. In re J.D.B., 435 S.W.3d at 467–68; In re M.R.J.M., 280 S.W.3d 494, 502

(Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g). We conclude on the record of this case

that these two factors weigh in favor of termination of parental rights.

The Emotional and Physical Danger to the Children Now and in the Future

The third Holley factor considers the current and future emotional and physical danger to

the children. As set out above, T.W. left the children alone in a van at Children’s Medical Center

and did not seem to appreciate either the need to ensure the children were always adequately

supervised or the emotional and physical danger to children from being left without adequate

supervision. See Jones v. Tex. Dep’t of Family & Protective Servs, No. 03-07-00727-CV, 2009

WL 1563544, at *9 (Tex. App.—Austin June 4, 2009, no pet.) (mem. op.) (considering mother’s

downplay of problems facing children in best interest analysis); see also See In re A.W., No. 05-

14-00686-CV, 2014 WL 4291481, at *5 (Tex. App.—Dallas Aug. 21, 2014, pet. filed). We

conclude on the record of this case that this factor weighs slightly in favor of termination of

parental rights.

Programs Available to Assist the Person Seeking Custody in Promoting the Children’s
Best Interest

The fifth Holley factor considers whether programs are available to assist the person

seeking custody in promoting the best interest of the children. The Department offered parenting

classes, a psychological evaluation, and both individual and domestic violence counseling to

assist T.W. in caring for the children and in dealing with domestic violence that had occurred in

her marriage and in a prior relationship. T.W. completed a parenting class in Arkansas, but it

was unclear that it met the requirements of the class ordered by the trial court. T.W. also

obtained a psychological evaluation in Arkansas, but did not complete the counseling

recommended following that evaluation or the counseling ordered by the trial court.

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 T.W. relies on a “Section 8” voucher to assist her in renting a house in Dallas to share

with the children, but the record is devoid of information concerning the length of time T.W. will

receive assistance from that program. Further, the only lease that Trotman had seen for the

house expired in January 2014. T.W. receives benefits for the five youngest children based on

M.W.’s status as a disabled veteran, but it is unclear the children will continue to receive those

benefits following the termination of M.W.’s parental rights. T.W. also believed she would

receive “death benefits” for J.L.

If the Department retained conservatorship of the children, it was committed to

continuing to provide counseling and psychiatric care to address D.W.’s, J.L.’s, and V.T.’s

behavioral issues. T.W. did not testify about any programs available to her to help the children

with their behavioral issues. We conclude on the record of this case that this factor weighs in

favor of termination of parental rights.

Plans for the Children and Stability of the Home or Proposed Placement

We consider the sixth Holley factor, the plans for the children, and seventh Holley factor,

the stability of the home or proposed placement, together. After the children were removed from

her care, T.W. moved back and forth between Texas and Arkansas. In Arkansas, T.W. lived

with her father, her sisters and brothers, in a hotel, and in her house. However, the house had

been vandalized and was no longer habitable. T.W. was also incarcerated for several months in

Arkansas and, at the time of trial, was on probation for five felony offenses.

If the children were returned to her care, T.W. planned to live with them in a four

bedroom house in Dallas that she was renting with the assistance of a “Section 8” voucher she

received when she was discharged from the shelter. As noted above, the record does not reflect

how long T.W. will be able to remain in that house or, given the terms of her probation in

Arkansas, whether she will be allowed to live in the house while she is on probation.

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 Approximately one month before trial, T.W. obtained a part time job in Dallas working

the evening shift at Brentwood Health Care. However, her employer did not know that she was

on probation for theft, aggravated assault, and possession of a defaced firearm. In addition to the

income she was earning, T.W received benefits for some of the children based on M.W.’s status

as a disabled veteran. T.W. did not know if the termination of M.W.’s parental rights would

affect her ability to collect those benefits. T.W. testified that she would also receive “death

benefits” for J.L., but did not know the amount of those benefits.

T.W. planned for the older children to attend a school near the house she had rented.

T.W. had contacted a daycare provider about caring for the three youngest children while she

was at work and had discussed possible child care with her neighbor. However, T.W. did not

appear to have sufficient resources to pay for child care for the three youngest children and had

not determined what it would cost to care for the older children while she worked evenings.

T.W. did not appear to recognize both the emotional and physical danger to the children from

being left without adequate supervision.

Obaze testified that D.W. was “parentified” from helping T.W. care for the younger

children and should not live with all her siblings. Further, V.T. was very aggressive toward J.L.

and threatened J.L. with physical harm. Due to V.T.’s behavior, it was not clear the two brothers

could remain in the same home. T.W. did not testify about any plans or programs that would

allow all her children to safely live together.

Throughout this case, the Department arranged for the children to visit each other even

when T.W. was not visiting them. Although the Department had attempted to find an

appropriate placement for all the children, there was no evidence they could be placed together.

Trotman testified the Department would encourage the individuals with whom the children were

placed to allow the children to continue to see each other.

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 If the Department retained custody of the children, it planned to place D.W. with her

paternal grandmother, who wanted to adopt her. Obaze believed D.W.’s grandmother could

provide D.W. with the stable environment she needed. Both A.W.’s and B.W.’s foster parents

were willing to adopt them. The Department planned for J.L. to be adopted but, after an

approved home study, would consider placing him with his paternal grandparents. Although

V.T.’s foster family had not committed to adopt him, they had committed to allow him to remain

in their home. Araiza believed this home provided a stable, well-structured environment. R.W.,

Ke.W., and Ka.W. had been placed with their paternal great-aunt, and the Department planned

for that placement to continue.5 We conclude on the record of this case that these factors weigh

in favor of termination of parental rights.

Parental Acts and Omissions

We consider the eighth and ninth Holley factors together. These factors consider acts or

omissions of the parent that indicate the parent-child relationship is improper, as well as any

excuses for the behavior. As set out in detail above, T.W.’s acts and omissions included

exposing the children to domestic violence, leaving the children alone in the van at Children’s

Medical Center, failing to complete the court-ordered services, failing to attend all scheduled

visits with the children, failing to follow the rules and maintain order during visitation with the

children, disrupting D.W.’s placements while she was in the Department’s care, and being

arrested and incarcerated while the children were in the care of the Department.

T.W. admitted she had been in an abusive relationship with M.W. and, at the time of trial,

was stilled married to M.W. See In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st

Dist.] 2010, pet. denied) (“Texas courts routinely consider evidence of parent-on-parent physical

5
We note that the Department’s inability to identify definite permanent placements for all the children is not dispositive in determining the
best interest of the children. See In re C.H., 89 S.W.3d at 28 (lack of evidence regarding definite plans for permanent placement and adoption
cannot be dispositive factor in determining best interest of child).

–26–
abuse in termination cases without specifically requiring evidence that the conduct resulted in a

criminal conviction.”); In re A.M., 385 S.W.3d 74, 82–83 (Tex. App.—Waco 2012, pet. denied)

(evidence of mother’s history of neglecting and endangering children by exposing them to

domestic violence supports finding termination was in each child’s best interest). She testified

they were living separately because M.W. had “PTSD,” but they were attempting to reconcile.

She did not explain her reasons for staying married to M.W. even though he had abused her.

T.W. also admitted she left the children alone in a van at Children’s Medical Center. See

In re T.M.J., 315 S.W.3d 271, 278 (Tex. App.—Beaumont 2010, no pet.) (considering fact

children were outside unsupervised in conducting best interest analysis). T.W. stated she had no

choice but to take the children with her when she sought medical care at Parkland. She told

Yarbrough that her friend “Marie” had said she was on her way to watch the children. She then

told Martin her friend “Shanasty” had agreed to come watch the children. Neither Marie nor

Shanasty was present at Children’s Medical Center. At trial, T.W. first testified her friend

“Shauinty” was supposed to come watch the children. She then testified she left the children in

the van to find a security guard to help them. According to T.W., she was gone for only five or

six minutes before returning to the van with a security guard. Although she conceded she made a

mistake by leaving the children in the van, she also stated she had no other choice and had done

nothing wrong. T.W. did not testify that she understood the problems with leaving the children

unsupervised or that she would ensure the children were always adequately supervised in the

future. See In re J.D.B., 435 S.W.3d at 467–68 (fact finder may infer from past conduct

endangering child’s well-being that similar conduct will recur if child is returned to parent’s

care).

We next turn to T.W.’s failure to complete all the services ordered by the trial court. See

In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (parent’s failure to

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comply with service plan may affect fact finder’s consideration of child’s best interest).

According to T.W., she was not offered any services after the children were removed from her

care. She also did not recall an order from the trial court requiring her to do certain things and

claimed that for six months the Department did not tell her what she needed to do to have the

children returned to her. T.W. eventually completed a parenting class and underwent a

psychological evaluation in Arkansas. She testified she had also been to three counseling

sessions. T.W. offered no excuse for failing to complete individual and domestic abuse

counseling as ordered by the trial court. T.W. admitted she had not cooperated with the

Department, but stated she had not been at her best behavior during the time the children were in

the Department’s care.

As to visitation with the children, Trotman testified that T.W. missed a number of

scheduled visits and it upset the children. T.W. admitted she had not attended visitation

regularly because she was incarcerated and was attempting to comply with the terms of her

probation. See In re. C.E., No. 02-14-00054-CV, 2014 WL 3866159, at *4 (Tex. App.—Fort

Worth Aug. 7, 2014, no pet.) (per curiam) (mem. op.) (considering fact that mother’s probation

was subject to revocation in best interest analysis); A.S. v. Tex. Dep’t of Family & Protective

Servs., 394 S.W.3d 703, 715 (Tex. App.—El Paso 2012, no pet.) (considering parent’s

incarceration in best interest of child analysis).

As for following the rules during visitation, T.W. admitted that she gave a cellphone to

D.W. She explained D.W. wanted the phone and she allowed her children to have material

things. T.W. claimed no one explained to her that D.W. could not have a cellphone. T.W.

admitted that she called 911 during one visit with the children, but claimed she did so because

the infant had a milk allergy and she was afraid something was wrong with the baby. T.W. did

not otherwise address the chaotic atmosphere during her visits with the children. See In re

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C.N.S., 2014 WL 3887722, at *10 (considering parent’s failure to demonstrate he had learned

skills taught during parenting class in best interest of child review).

T.W. admitted that, after D.W. was placed with her grandmother, she filed complaints

with “Consumer Affairs” in Arkansas, but denied she did anything to cause D.W.’s placement

with her grandmother to end. T.W. did not testify about her conduct that required D.W. to be

removed from her first foster home.

T.W. testified she was placed on probation in Arkansas in 2008 for aggravated assault,

forgery, possession of a defaced firearm, and two felony theft offenses. See In re R.R., 294

S.W.3d 213, 235–36 (Tex. App.—Fort Worth 2009, no pet.) (evidence of parent’s past

convictions supported best interest finding). In 2013, T.W. was arrested in Arkansas and

incarcerated for several months. See In re J.B.W., 99 S.W.3d 218, 229 (Tex. App.—Fort Worth

2003, pet. denied) (parent’s incarceration is one factor courts can consider when determining

best interest of child). According to T.W., she had been attempting to meet her “obligations” to

the Arkansas court and she would be released from probation after she completed paying $2,200

in restitution.

Given the extent of T.W.’s acts or omissions and her failure to recognize her conduct was

detrimental to the children, we conclude these two factors weigh in favor of termination of

parental rights.

Statutory Factors

Finally, the jury was instructed it could also consider the statutory factors in determining

the best interest of the children. As set out above, the removal of the children from T.W.’s care

was based on her leaving the children in a van on one occasion. However, all of the children

were younger than nine years old, and the youngest child was only five days old. An individual

noticed the children in the van and called security, leading to the children suffering no physical

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harm from being left alone. T.W. did not believe she did anything wrong by leaving the children

in the van and never stated she would ensure the children were always adequately supervised in

the future.

Although T.W. had located a house and a part-time job, she failed to attend counseling as

ordered by the trial court and as recommended following her psychological evaluation. Other

than her unsuccessful attempt during one visit to control her interactions with the children, she

failed to apply anything learned in her parenting classes during her visits with the children. She

remained in an abusive relationship with M.W. She was belligerent and aggressive throughout

the time the children were in the Department’s care and blamed everybody else for her situation.

Her interactions with the children during visits demonstrated she was unable to control their

environment or provide positive direction for them. We conclude on the record of this case that

the statutory factors, particularly factors (1), (6), (7), (10), (11), (12), and (13), also weigh in

favor of termination of parental rights. See TEX. FAM. CODE ANN. § 263.307(b).

Conclusion

We recognize that termination should not be used as a way to reallocate a child to

“better” or more prosperous parents. In re C.E.K., 214 S.W.3d 492, 504 (Tex. App.—Dallas

2006, no pet.). “[P]arental rights may not be terminated merely because a child might be better

off living elsewhere.” In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.). In

this case, however, the record establishes that T.W. has continued to make choices that do not

put her children’s safety and welfare first. See In re A.W., 2014 WL 4291481, at *8 (concluding

evidence mother did not make safety, security, and stability of children her first priority

supported finding termination was in best interest of children); Jones, 2009 WL 1563544, at *9

(evidence legally and factually sufficient to support finding that termination was in best interest

of children because mother had not shown ability to be safe and stable parent even though

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children expressed love and desire to be reunited with mother). We conclude the jury could have

reasonably determined that T.W. could not reliably provide for the children’s emotional and

physical needs and posed a potential danger to their emotional and physical well-being. The jury

also could have reasonably found that T.W.’s history of instability overshadowed and cast doubt

on her ability to consistently use good parenting skills. See Danet v. Bhan, 435 S.W.3d 793,

797–98 (Tex. 2014) (per curiam) (considering parent’s past conduct in considering whether

evidence was legally sufficient to support best interest finding). Considering all the Holley and

statutory best interest factors, and the record as a whole, we conclude clear and convincing

evidence supports the jury’s findings that termination of T.W.’s parental rights was in the

children’s best interest. Accordingly, we resolve T.W.’s sole issue against her and affirm the

trial court’s judgment.

/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE

140871F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN THE INTEREST OF: D.W., J.L., V.T., On Appeal from the 304th Judicial District
R.W., Ke.W., Ka.W., B.W., and A.W., Court, Dallas County, Texas,
Minor Children Trial Court Cause No. 12-1043-W.
Opinion delivered by Justice Fillmore,
No. 05-14-00871-CV Chief Justice Wright and Justice Evans
participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 10th day of October, 2014.

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