COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-334-CV
IN THE INTEREST OF B.F.,
M.F., AND Z.F.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Felicia C. appeals the trial court’s order terminating her parental
rights to her three children, B.F., M.F., and Z.F. In three issues, appellant
moves to strike the trial court’s findings of fact and conclusions of law, argues
that sections 263.405(b) and (i) of the Texas Family Code are unconstitutional,
and contends that the evidence was factually insufficient to support the trial
1
… See T EX. R. A PP. P. 47.4.
court’s best interest findings. Because we hold that the evidence was factually
sufficient to support the trial court’s best interest findings, we affirm.
Background Facts
On October 20, 2006, the Texas Department of Family and Protective
Services (TDFPS) received a referral that B.F. and M.F. were seen at school
after hours using the bathroom and were unsupervised outside late at night.
On October 31, TDFPS visited appellant’s duplex on Austin Street, where she
lived with her sister and their nine children.2 The duplex had one living room,
one nonfunctioning bathroom, and two bedrooms. TDFPS investigated, and
appellant and her sister admitted to using methamphetamines. TDFPS removed
appellant’s children, nine-year-old B.F., six-year-old M.F., and four-year-old Z.F.
and placed them in foster care.3 Vickie Wright, a family-based safety services
worker at TDFPS, testified at trial that TDFPS’s concerns were appellant’s drug
use and neglectful supervision.
2
… Michael F., the children’s father, did not live with appellant or the
children. At the time of trial, he was incarcerated. Michael’s parental rights to
the children were terminated on September 13, 2007. He did not appeal that
order.
3
… Rather than place B.F., M.F., and Z.F. together in the same foster
home, TDFPS placed them in homes with their closely-related cousins because
they had all been living together prior to removal.
2
Tyra LaGarde, a caseworker for TDFPS, met with appellant in November
2006. Appellant admitted to LaGarde that she used methamphetamines while
she was caregiver to her children. Appellant also told LaGarde that she had a
problem and wanted to do what was needed to get her children back. LaGarde
sent appellant for a drug assessment, and LaGarde prepared a service and
treatment plan, which included parenting classes, a psychological evaluation,
individual counseling, domestic violence counseling, and anger management;
the service plan also required appellant to secure appropriate housing. A drug
counselor recommended that appellant enter a two-year drug treatment
program, but appellant refused. Appellant also refused to participate in a
ninety-day drug treatment program but did agree to a thirty-day drug treatment
program that included a housing program; appellant entered rehab in February
2007. Before entering the treatment program in February, appellant refused to
participate in UAs requested by TDFPS in December 2006 and January 2007;
appellant told LaGarde that the UAs would be dirty. After appellant completed
the initial thirty-day program, TDFPS offered to let appellant stay in the housing
program, but appellant refused because she wanted access to a telephone.
Appellant attended five sessions of an after-care program, but she did not
participate after April 2007. Appellant also attended five anger management
3
classes, but did not complete the program. Appellant did not attend any
domestic violence classes or individual counseling.
Appellant continued to be randomly drug-tested once a month after
leaving rehab. In March 2007, appellant’s UA was negative, but an oral swab
taken could not be used for testing because the sample of saliva was not large
enough. In April 2007, appellant failed to take her drug test, thus TDFPS listed
in its records that appellant had admitted to drug use.
Also in April, appellant moved to Wise County to live with her mother.
While living in W ise County, appellant worked as a correctional officer for a
company called Corrections Corporation of America (CCA), although she was
unemployed at the time of trial. TDFPS also set up appellant’s services in Wise
County, including a psychological evaluation with Dr. Evan Knapp, a clinical
psychologist.
In May 2007, Dr. Knapp conducted a psychological examination of
appellant. According to Dr. Knapp, appellant had a past history of drug use;
she smoked marijuana after her youngest child, Z.F., was born and started
using methamphetamines when she moved in with her sister in 2006. Dr.
Knapp also testified that appellant’s parents smoked marijuana all of her life.
Dr. Knapp testified that he believed appellant had a clear drug use problem
although she did not have a long history of drug use. He also reported that
4
appellant had an adjustment disorder with mixed emotional features. Dr. Knapp
stated that long-term support was very important for appellant to be a
successful parent.
In May 2007, police arrested appellant for traffic violations, and she spent
three days in jail. Also in May, appellant’s hair follicle drug test was void
because she had recently dyed her hair. Appellant’s drug tests in June and July
2007 were negative; she did not submit to drug tests in August or September
2007, so TDFPS also recorded the skipped tests as admissions of drug use.
At some point in August, appellant moved back to Fort Worth and
attended parenting classes. Appellant did not often attend visitations with her
children after they were initially removed in October, but began to visit more
frequently in the summer months. After appellant began her job training, the
visits decreased again and remained sporadic at the time of trial. The children
had a hard time not seeing appellant, and they were sad and cried when she did
not attend. But the children were happy to see each other because they lived
in separate foster homes. LaGarde testified that when appellant did visit, there
was minimal interaction. Appellant would often sit on a chair or the couch and
only communicate with the children when they approached her. CASA
advocate Melissa Dailey, who was assigned to the case in November 2006,
attended and observed most visits. She testified that appellant exhibited more
5
interaction with her youngest child, Z.F., and favored him more than the older
two children. She also testified that interaction with the oldest child, B.F., was
strained but improved over time. She also testified that appellant’s interaction
with M.F., her middle child, was minimal. Dailey noticed that appellant would
not approach or hug M.F., and many times there was no interaction past the
initial hello. Both LaGarde and Dailey often observed appellant making phone
calls during her visits. LaGarde testified that during one visit, appellant called
the children’s father and had the children talk to him on the phone; B.F. became
very upset after talking to her father.
When the children came into foster care, they were not in good physical
condition. All of the children needed extensive dental work. For example, M.F.
had numerous cavities, and Z.F. needed seventeen crowns. Additionally, the
children’s shots were not up to date. Z.F. was not in school because he did not
have the required immunizations. TDFPS also had major concerns about Z.F.’s
weight. When TDFPS removed Z.F., he was four years old but only weighed
thirty pounds. Dailey also testified that Z.F. was very thin; his facial features
were sunken, and his eyes were dark underneath.
The termination bench trial took place on September 11-13, 2007. At
trial, Jeanette Mendez, M.F.’s teacher, testified that M.F. was in her class in
6
October 2006 for a total of twenty-eight days. 4 She testified that M.F. was
tardy eleven out of those twenty-eight days; he was also absent two days out
of twenty-eight. Mendez also testified that M.F. was very behind in his
reading; for example, he should have been reading ninety words per minute, but
he read only twenty-five or thirty. M.F. also struggled with math and had
trouble with simple addition and subtraction problems. Mendez testified that
each student kept a journal, but M.F. would only write one sentence in his book
per day. Additionally, M.F. returned his homework only three times. Mendez
knew that M.F. lived right across the street from the school, and she found out
that M.F. was sneaking back into the school building after hours to use the
restroom because the toilet in his house did not work. Mendez also testified
that M.F. did not always meet the dress code requirement and sometimes wore
his sister’s clothes, which were too big for him. Mendez believed that M.F.
was being neglected, but she did not know if there was any abuse going on.
B.F.’s foster parent, Janice F., also testified at trial. Janice testified that
B.F. had been living with her since February 2007. She testified that B.F. was
in fifth grade and doing well, although B.F. was “low” in math when she first
came to live with Janice. Janice also testified that B.F. told her that she had
4
… M.F. would have been seven years old.
7
seen appellant, her father Michael, and her aunt do drugs. B.F. told Janice that
on visits, B.F. could smell drugs on appellant. B.F. also told Janice that she
saw appellant and her father having sex and appellant having sex with other
men.
Additionally, Janice testified about possible abuse to B.F. Janice said
that she and B.F. were at home watching a documentary on TV about children
being abused by family members when B.F. began to talk about sleeping in her
father’s bed. Janice stated that B.F. slept in her father’s bed and one time she
woke up and had slobber all over her nightgown; B.F. said that her father had
slobbered on her, and she had to go change her nightgown. B.F. told Janice
that the slobber smelled awful and was wet. Janice also testified that B.F. told
her that she did not feel good “down [there]” when she woke up. B.F. also told
Janice that appellant was not there. Janice could not get B.F. to talk about the
incident anymore, but Janice did tell LaGarde and B.F.’s therapist. Janice
testified that she believed B.F. was abused.
In addition to Janice’s testimony about B.F.’s abuse, caseworker LaGarde
also spoke with B.F. about the same incident. LaGarde testified that B.F. told
her that she was in bed with her father and when she woke up, there was
white, sticky spit all over her. LaGarde stated that B.F. told appellant, and
appellant told her to stop sleeping with her father. LaGarde testified that B.F.
8
said that her father called appellant and her sluts and bitches and stated that
B.F. was not his child.
LaGarde testified that at the time of trial, the children were current with
their immunizations, doing great, and responded well to a more stable,
structured environment. Five-year-old Z.F. was in kindergarten and loved
school. He had gained weight and took a supplement to help with more weight
gain although he remained tiny for his age. M.F. was an exceptional child with
no need for special education and was over-the-top with academics. Although
he had anxiety and worry over the foster care situation, he exhibited superior
intelligence. M.F. took medications for ADHD, allergies, bed-wetting, and
depression. B.F. also enjoyed school. Additionally, LaGarde testified that a
home study was done on the children’s maternal grandmother, but placement
was denied by TDFPS because of unfavorable references. TDFPS determined
that no other relatives were suitable placement options. LaGarde testified that
she believed it was in the children’s best interests to terminate appellant’s
parental rights to the children.
9
Appellant also testified at trial.5 Appellant stated that she did not know
her current address because she had only lived there about one month but that
her landlord’s name was Rhonda. Appellant also did not know about schools
in the area, and she had not checked on teachers, schedules, or enrollment for
her children. Appellant testified that she had previously worked at a
correctional facility for five months from the end of April until August, but she
was not currently working because she had recently moved back to Fort Worth
to find housing for her children. Although she did not have a job at the time of
trial, appellant testified that she had applied for employment at the post office,
Smith Security, and Racetrac.
Appellant admitted that she began using drugs at age twenty-one 6 after
her youngest child was born but did not know the effects that the drugs would
have. She testified that she would use drugs at night when the children were
in bed. Appellant testified that she was drug tested when asked and that there
was only one time that she did not go, but she still went and was tested the
next day. Appellant also testified that she was not using drugs anymore.
5
… Appellant was present on the first day of trial, but she arrived almost
two hours late on the second day of trial. Appellant testified that she thought
the trial started at 10:00 a.m.
6
… Appellant was twenty-seven years old at the time of trial.
10
Appellant stated that she took her children to the dentist, but that at
times, she did not have transportation. She also took them to get their shots.
Appellant did not talk to M.F.’s teacher and never received any notes from the
school. She also testified that Mendez’s testimony about M.F. being tardy
eleven times was inaccurate; she said sometimes they were late but not eleven
times. Transportation problems also prevented appellant from attending
individual counseling, anger management, and domestic violence counseling;
however, appellant got her car fixed the day before trial. Appellant stated that
she was scared of taking the bus. Appellant testified that she did not know
services were set up for her in Wise County while she was living there.
Appellant met the children’s father, Michael, at a hotel once during the
pendency of her case. She testified that he was both mentally and physically
abusive. She also testified that she believed he was an appropriate person to
parent their children.
Appellant testified that she missed some visits with her children while she
was in rehab, but she did not recall missing any visits after that. She also
missed some visits while she was training to be a correctional officer, but she
tried to leave messages with LaGarde. Appellant also stated that she did not
remember a time when she did not express affection or hug M.F.; her
relationship with M.F. was not strained. She testified that she wanted her
11
children back because she loved them and they needed her; she was capable
of parenting them, and she had a place for them to live. Appellant also stated
that she would seek assistance if needed.
Rhonda E., who allowed appellant to stay with her for three days a week
before trial, also testified. She testified that she met appellant four years ago
at her sister’s health club. Rhonda did not have much contact with appellant
other than an occasional phone call but allowed appellant to stay with her
because she knew appellant was trying to get her children back. Rhonda heard
much of the testimony at trial and testified that she felt like appellant had lied
to her, had no knowledge of all that was going on, was very naive about the
situation, and was taken off-guard by the whole thing. Rhonda also testified
that appellant never lived with her but only stayed with her for three days; after
learning the circumstances of appellant’s situation, Rhonda testified that there
was no way appellant could live with her.
After the three-day bench trial, the trial court terminated appellant’s
parental rights to her children, finding by clear and convincing evidence that she
(1) knowingly placed or knowingly allowed the children to remain in conditions
or surroundings which endangered their physical and emotional well-being, (2)
engaged in conduct or knowingly placed the children with persons who engaged
in conduct which endangered their physical or emotional well-being, and that
12
(3) termination was in the children’s best interests. See T EX. F AM. C ODE A NN.
§ 161.001(1)(D), (E) & (2) (Vernon Supp. 2007). Appellant filed a motion for
new trial, which contained her statement of points, and a notice of appeal. The
trial court held a hearing on the motion for new trial on October 9, 2007. At
that hearing, the trial court found appellant indigent and denied the motion for
new trial.
Statement of Points
In appellant’s second issue, which we will address first, she argues that
sections 263.405(b) and (i) of the family code place the first level of appeal in
the trial court, which has no appellate jurisdiction, thus preventing this court
from addressing issues preserved or otherwise raised on appeal. Additionally,
appellant argues that those provisions violate due process and the separation
of powers doctrine.
Because this court has held that section 263.405(i) is “void as a violation
of the separation of powers provision of the Texas constitution,” we sustain
appellant’s first issue to the extent she argues section 263.405(i) violates the
separation of powers provision of the Texas constitution. In re D.W., No. 02-
06-00191-CV, 2008 WL 467328, at *12 (Tex. App.—Fort Worth Feb. 19,
2008, no pet. h.) (en banc).
13
Findings of Fact and Conclusions of Law
In her first issue, appellant moves to strike the trial court’s findings of fact
and conclusions of law. Appellant contends that although neither party
requested any findings of fact or conclusions of law, the trial court signed a
document entitled “Findings of Fact and Conclusions of Law as Requested by
Respondent Felicia C[.]” on October 9, 2007. Appellant’s statement of points
was due on September 28, 2007, fifteen days after the termination decree was
signed; therefore she did not include any attack on the findings of fact or
conclusions of law. Appellant questions whether she has waived her factual
sufficiency complaint because she was not able to challenge the individual
findings of fact and conclusions of law in her statement of points.
The State does not contest appellant’s contention and concedes that the
evidentiary findings entered by the trial court are immaterial. Additionally,
appellant did generally raise her factual sufficiency challenge to the trial court’s
best interest finding in her combined motion for new trial and statement of
points. Furthermore, we have already determined that section 263.405(i) of
the Texas Family Code violates the separation of powers provision of the Texas
constitution. D.W., 2008 WL 467328, at *12. Thus, we sustain appellant’s
first issue and address the merits of her remaining issue.
14
Factual Sufficiency Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59,
102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
In a termination case, the State seeks not just to limit parental rights but to end
them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child’s right
to inherit. T EX. F AM. C ODE A NN. § 161.206(b) (Vernon Supp. 2007); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of
the parent. Holick, 685 S.W.2d at 20-21; In re E.M.N., 221 S.W.3d 815, 820
(Tex. App.—Fort Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001 (Vernon
Supp. 2007); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established; termination may not be based solely on the best interest of the
15
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that termination of the parent’s parental rights would be in
the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If,
in light of the entire record, the disputed evidence that a reasonable fact-finder
16
could not have credited in favor of the finding is so significant that a fact-finder
could not reasonably have formed a firm belief or conviction in the truth of its
finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child's best interest. T EX. F AM. C ODE A NN. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include:
(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 danger to the child now and
in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to
promote the best interest of the child;
(6) the plans for the child by these individuals or by the
agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
17
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
In addition to the above, a parent’s inability to provide adequate care for
the children, lack of parenting skills, and poor judgment may also be considered
when looking at the children’s best interest. In re C.A.J., 122 S.W.3d 888,
893 (Tex. App.—Fort Worth 2003, no pet.). Evidence of a parent’s unstable
lifestyle can also support a factfinder’s conclusion that termination is in the
children’s best interests. In re S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort
Worth 2006, no pet.). Furthermore, a parent’s drug use and inability to comply
with his or her family service plan support a finding that termination is in the
children’s best interests. Id. at 887-88.
18
Desires of the children
Caseworker LaGarde testified that when the children were initially placed
in foster care and realized that most people did not live the way they had been
living, they were sad. The children expressed a desire to return to living with
appellant if conditions were better.
Janice F., B.F.’s foster parent, testified that B.F. loved appellant and
prayed for her. Janice also testified that B.F. wanted to be with appellant but
not if appellant continued to do drugs and go out often. B.F. did not want to
be the mother to her younger brothers.
LaGarde testified that the transition into adoption may be hard on the
children at first, but they were ready to move on. She testified that they
wanted closure and were ready to go to the next phase of their lives. She also
stated that their relationship with appellant was strained and there was minimal
interaction between appellant and the children. CASA advocate Dailey also
testified that moving the children to a new home would initially be challenging
because they would no longer be with their cousins and because they loved
appellant, but it was critical that the children be together. She testified that the
sibling relationship should take priority over the relationship with their cousins.
19
The emotional and physical needs of the children now and in the future, and the
emotional and physical danger to the children now and in the future
Family-based safety service worker W right testified that appellant’s
duplex was clean, the kitchen worked, and there was food in the house. But
a court report by CASA advocate Dailey stated that the house contained no
food. The record contains evidence that M.F. and Z.F. were too thin, they
went to school hungry, and often asked neighbors for food. Dailey’s testimony
illustrates the lack of a proper diet; she stated that Z.F.’s facial features were
sunken, and his eyes were dark underneath. Additionally, the bathroom did not
work, and B.F. and M.F. were sneaking into their school across the street after
hours to use the restroom. The record reflects that the children had extensive
dental problems that required numerous caps, crowns, and fillings. In addition,
the children’s shots were not up to date. Although she sometimes had
transportation problems, appellant testified that she took her children to the
dentist and that the children’s shots were current.
The evidence also shows that appellant has had frequent changes of
residences and multiple jobs. Since the children were placed in foster care in
October 2006, appellant had lived in at least five locations: with a friend
Rhonda, with a cousin named Amber, with her mother in W ise County, at a
thirty-day drug treatment facility, and in a house off of Austin Street. Before
20
living on Austin Street, appellant lived in two homes for battered women.
Appellant testified that she had four jobs since she lived in the home for
battered women, but the evidence shows that appellant‘s only job was for five
months as a correctional officer. Appellant was not employed when the
children were removed nor was she employed at the time of trial. Further, it
was not clear at trial where appellant was living. Appellant testified that she
was living with her friend Rhonda; however, Rhonda testified that she let
appellant stay with her for three days about a week before trial, but appellant
was not currently living with her nor could appellant live with her.
The evidence also shows that the children struggled in school. However,
since their removal, the children had done great and responded well to a more
stable, structured environment. Z.F. was in kindergarten, loved school, and
gained weight. M.F. was an exceptional child with no need for special
education, over-the-top with academics, and exhibited superior intelligence.
Although he had anxiety and worry over the foster care situation, M.F. took
medications for ADHD, allergies, bed-wetting, and depression. B.F. also
enjoyed school and was doing well.
21
The parental abilities of the individuals seeking custody, and the programs
available to assist these individuals to promote the best interest of the children
Appellant admitted that she began using drugs at age twenty-one after
her youngest child was born. Although appellant testified that she did drugs at
night when her children were in bed, the evidence demonstrates that her
children were aware of her drug use. For example, B.F. told Janice that she
saw appellant doing drugs and that she could smell drugs on appellant during
visitations. Additionally, M.F. was seen simulating injecting something into his
arm.
After appellant completed the thirty-day drug treatment program, TDFPS
required her to be drug tested once a month. Appellant testified at trial that she
was not using drugs anymore, but she had three positive test results and six
admissions from December 2006 until September 2007. During this same time
period, appellant tested negative for drugs only three times.
The evidence demonstrates that appellant completed a psychological
evaluation and parenting classes as required by her service plan. Appellant also
participated in other programs and services, such as the after-care program and
anger management; however, appellant testified that she did not complete
those programs because she started working. Additionally, appellant did not
participate in any individual counseling or domestic violence counseling.
22
Although housing was an issue in this case, appellant refused to stay in the
housing program following the completion of her thirty-day treatment program.
Dr. Knapp conducted a psychological evaluation of appellant in May
2007. Dr. Knapp testified that appellant did not have a positive relationship
with the children’s father, Michael, and that he was verbally abusive. Despite
appellant admitting that Michael was both mentally and physically abusive, she
met him at a hotel once while the case was pending and testified that she
believed he was an appropriate person to parent their children. There is also
evidence that appellant was aware that Michael was sexually abusing B.F., but
she took no action to protect her daughter. W hen B.F. told appellant about
what had happened, appellant told B.F. to stop sleeping with her father.
Dr. Knapp also observed that appellant had low confidence, did not feel
good about her abilities or about herself, and had low self-esteem. He testified
that although appellant had dropped out of high school, she later went back to
get her GED. He also stated that appellant had an average IQ with a high
school reading level and seventh grade math skills.
The record also reflects that appellant made some effort to attend
visitations with her children. Appellant missed most visits during the first two
months after the children were removed and before she entered rehab, but she
did make most of the visits after rehab until she started training for her job as
23
a correctional officer. The record also reflects that many of those visits were
strained, and she had minimal interaction with the children. Additionally,
appellant often made phone calls during visitation hours.
The evidence reflects that TDFPS made efforts to work with appellant.
For example, TDFPS set up services for appellant when she moved to Wise
County and tried to coordinate visits to accommodate appellant’s schedule. But
appellant was unable to complete most of her service requirements or remain
drug free. Furthermore, she continued to interact with the children’s abusive
father rather than develop a relationship with her children.
The plans for the children by these individuals or by the agency seeking
custody, and the stability of the home or proposed placement
Regarding future plans for the children, both LaGarde and Dailey testified
that TDFPS’s goal was to have the children adopted together. At the time of
trial, the children were living apart in foster homes, but Dailey testified that
keeping the children together was critical. LaGarde testified that a home study
was done on the children’s maternal grandmother, but TDFPS denied placement
because of unfavorable references.
Appellant testified that she was trying to obtain housing for her herself
and her children, but at the time of trial, appellant was unemployed and
homeless.
24
The acts or omissions of the parent which may indicate that the existing parent-
child relationship is not a proper one, and any excuse for the acts or omissions
of appellant
As for the parent-child relationship, there is evidence that B.F. took on the
role of mother to her younger brothers. For example, appellant would sleep all
day, and B.F. would wake her to make sure M.F. was picked up from school.
In addition, the children were sad when they realized that the life they had been
living with appellant was not normal. Furthermore, appellant did not seem to
be as bonded to the children as they were to her.
The evidence also establishes that appellant was a chronic drug user and
that she never provided money, clothing, or gifts to her children while they
were in foster care.
Based upon our review of the entire record, including appellant’s history
of drug abuse and inability to maintain a stable lifestyle with steady
employment and adequate housing, we conclude that the trial court could have
reasonably formed a firm conviction or belief that termination of appellant’s
parental rights was in the children’s best interest. See S.B., 207 S.W.3d at
887-88. Therefore, we hold that the totality of the circumstances in light of
the Holley factors is factually sufficient to establish by clear and convincing
evidence that termination was in B.F.’s, M.F.’s, and Z.F.’s best interest. Id.
Accordingly, we overrule appellant’s third issue.
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Conclusion
Having overruled appellant’s third and only dispositive issue, we affirm
the trial court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL F: CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.
CAYCE, C.J. concurs without opinion.
DELIVERED: April 3, 2008
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