in the Interest of O.L.A., K.B., and P.B., III

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-06-321-CV

IN THE INTEREST OF O.L.A., K.B., AND P.B., III

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION 1

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I. Introduction

This is a parental rights termination case. Appellant Jamilia B. challenges

the judgment terminating her parental rights to two of her three children—K.B.

and P.B.2 First, Appellant complains that the evidence is legally and factually

insufficient to support the jury’s findings that she engaged in conduct or

1
See T EX. R. A PP. P. 47.4.
2
Appellant does not challenge the termination of her parental rights to her
oldest son, O.L.A. Appellant’s rights to O.L.A. were also terminated, and he
was placed in the care of his biological father.
knowingly placed the children with persons who engaged in conduct that

endangered the physical or emotional well-being of the children. She also

challenges the legal and factual sufficiency of the jury’s finding that she failed

to comply with her court-ordered service plan. In her second point, Appellant

complains that she was denied effective assistance of counsel because her trial

counsel withdrew from the case before filing any postjudgment procedural

protections or relief—including failing to file a motion for new trial or statement

of points. In her third point, Appellant complains that her due process rights

were violated when the trial court permitted her trial counsel to withdraw

before filing a motion for new trial or statement of points. Finally, Appellant

complains that her due process rights were further violated by section

263.405(i) of the Texas Family Code requiring a statement of points to be filed

within fifteen days of the trial court’s final order, when an appellate record was

not available to appellant counsel at that time. We affirm.

II. Factual and Procedural Background

O.L.A. is the biological child of Appellant and Andre A. K.B. and

P.B.—the younger of the three children to whom the jury terminated Appellant’s

parental rights—are the biological children of Appellant and Phillip B.3

3
During the pendency of this case, Phillip B. was found guilty of injury to
a child—O.L.A. Phillip B. is not a party to this appeal.

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 In 2001, Kansas child protective services removed O.L.A. from

Appellant’s home after her husband, Phillip B., admitted chasing the two-year-

old with a curtain rod and beating the child with the rod as punishment for

wetting his pants. Phillip B. was subsequently convicted of injury to a child,

served thirty days in jail, and was placed on probation for two years.

On the day of the beating, Appellant had left O.L.A. with Phillip B. so she

could go wash laundry. When she returned, Phillip B. had already put O.L.A.

to bed. The next morning, despite O.L.A. having a band-aid above his eye,

Appellant took O.L.A. to daycare without looking to see whether and to what

extent O.L.A. was injured. The daycare later called Appellant and informed her

that O.L.A. had been taken to the emergency room because of the injury.

Kansas officials removed O.L.A. from Appellant’s home, but returned him after

Phillip B. and Appellant completed court-ordered parenting classes and

counseling sessions. The family left Kansas and moved to Texas later that

same year.

Appellant admits that while she lived in Texas, she frequently left all three

of her children alone with Phillip B. Also while in Texas, additional allegations

of child abuse arose. In 2003, the Texas Department of Family and Protective

Services (“TDFPS”) received a referral from Denton school officials reporting

that O.L.A. had a “busted” lip that was “swollen and bloody.” Although

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Appellant and Phillip B. gave differing accounts of the events surrounding the

injury, O.L.A. told the TDFPS investigator that Phillip B. shoved him into a wall

the previous night while he was brushing his teeth. Appellant originally told

TDFPS that O.L.A. “busted” his lip in a fall while Appellant was in another

room, but she later stated that the injury occurred while O.L.A. was

“horseplaying” in the family’s home. Appellant testified that she did not initially

look to see how severely O.L.A. had been injured.

In 2005, the agency received yet another referral on O.L.A. after the child

came to school with a black eye. During the course of their investigation,

TDFPS officials observed numerous bruises, scratches, and scars all over the

child’s body. O.L.A. told investigators that his black eye occurred when Phillip

B. punched him in the eye for not sharing toys with his sister, and that the

scratches on his back came from Appellant’s fingernails. O.L.A. also said that

Phillip B. would often pinch his ears and hit him with a wooden boat oar as

punishment.

Appellant testified that she first saw the black eye when she took O.L.A.

to school and a teacher asked what had happened. She further testified that

she asked O.L.A. about the black eye, but he did not know how he got it. She

testified she did not see any of the other marks and bruises at this time, but

later testified she had seen most of the marks on previous occasions.

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 When asked about the boat oar, Appellant testified that she was aware

of the boat oar. She stated that Phillip B. had brought it home and told her he

was going to use it to “threaten” O.L.A. when he misbehaved. Through time,

the boat oar transformed into a paddle. Appellant testified that she remembers

the boat oar being brought home and that later she remembered the boat oar

being wrapped in tape. Although Appellant testified that the purpose of the

boat oar was to scare O.L.A., she also testified that she was concerned that

Phillip B. used the boat oar to physically punish both O.L.A. and K.B. When

TDFPS discovered the boat oar, it had stains on it. The stains tested positive

as blood.

During their investigation into O.L.A.’s injuries, a detective and protective

services’ workers learned that two other children resided in Appellant’s home.

The detective testified that when they were at Appellant’s home investigating,

Appellant would fluctuate “between out of control shouting and making

absolutely no sense, to sitting calmly for just a second. But as soon as

[investigators] tried to broach the subject [of O.L.A.’s injuries] . . . she start[ed]

shouting again.” At this time, Appellant denied any knowledge of any injury to

O.L.A. When case workers accompanied O.L.A. into the house, Appellant did

not examine him or look for his injuries. At trial, however, Appellant admitted

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she had seen all the injuries before, but gave varying and benign explanations

for their cause.

Investigators also reported apparent signs of domestic abuse.

Specifically, investigators observed numerous holes in several of the interior

doors of the home which Appellant admitted were caused by Phillip B. kicking

the doors when he became angry. Appellant testified that she was not at home

when the damage occurred, but the children were. She also testified that upon

seeing the damage to the house, she feared for herself and her children.

At the conclusion of its investigation, TDFPS removed the children from

the home and eventually filed this termination proceeding. In compliance with

the trial court’s interim order prescribing the manner by which Appellant could

possibly have the children returned to her, Appellant was referred to Dr. Mark

Foster for a psychological evaluation. Foster concluded, among other findings,

that Appellant focuses on herself “to an unhealthy extent” and has great

difficulty appreciating how her behavior impacts her children. Furthermore,

Foster concluded that Appellant had a distorted “perception of the world”, had

tendencies to “minimize or distort or deny” facts unfavorable to her, and met

the psychological profile of a person with a tendency to “regress[] into

antisocial behaviors” such as lying.

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 Appellant attended counseling from a number of individual and group

based parent-counseling programs. One of these counselors testified that

Appellant failed to acknowledge that abuse had occurred in her home and that

this denial would negatively affect Appellant’s ability to provide a safe home for

any of the children. This counselor terminated the counseling sessions due to

Appellant’s lack of progress. Appellant told another counselor that she was

shocked abuse had occurred and she was unaware of it happening in her home.

Appellant also told counselors that she was separated from Phillip B. during this

time period, but admitted at trial that she had told counselors that because it

was her plan to do so in the future.

At the conclusions of Appellant’s trial, the jury returned a verdict

specifically finding that Appellant had (1) knowingly placed or knowingly

allowed all three children to remain in conditions or surroundings that

endangered their physical or emotional well-being; (2) Appellant engaged in

conduct that endangered the physical or emotional well-being of the children;

(3) Appellant failed to comply with the provisions of the court-ordered plan for

the return of her children; and (4) termination of Appellant’s parental rights

would be in the best interest of the children. Appellant appeals from the

judgment on the verdict.

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III. Discussion

A. Legal and Factual Sufficiency of Termination

In her first point, Appellant contends that the evidence is legally and

factually insufficient to support the jury’s verdict terminating her parental rights

to K.B. and P.B. under family code sections 161.001(1)(D),(E) and (O).

Appellant does not challenge the legal or factual sufficiency that termination

was in the best interest of either child.

1. Burden of Proof and 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).

“While parental rights are of constitutional magnitude, they are not absolute.

Just as it is imperative for courts to recognize the constitutional underpinnings

of the parent-child relationship, it is also essential that emotional and physical

interests of the child not be sacrificed merely to preserve that right.” In re

C.H., 89 S.W.3d 17, 26 (Tex. 2002); In re S.B., 207 S.W.3d 877, 884 (Tex.

App.—Fort Worth 2006, no pet.). 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

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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); S.B., 207 S.W.3d at 884. We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of

the parent. Holick, 685 S.W.2d at 20-21; S.B., 207 S.W.3d at 884; In re

E.S.S., 131 S.W.3d 632, 636 (Tex. App.—Fort Worth 2004, no pet.).

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); S.B., 207 S.W.3d at 884. 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); S.B., 207 S.W.3d at 884; In re

K.W., 138 S.W.3d 420, 425 (Tex. App.—Fort Worth 2004, 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); S.B., 207

S.W.3d at 884.

The higher burden of proof in termination cases elevates the appellate

standard of legal sufficiency review. J.F.C., 96 S.W.3d at 265; S.B., 207

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S.W.3d at 884. The traditional no-evidence standard does not adequately

protect the parents’ constitutional interests. J.F.C., 96 S.W.3d at 265; S.B.,

207 S.W.3d at 884. In reviewing the evidence for legal sufficiency in parental

termination cases, we must determine whether the evidence is such that a fact-

finder could reasonably form a firm belief or conviction that the grounds for

termination were proven. J.F.C., 96 S.W.3d at 265-66; S.B., 207 S.W.3d at

884. We must review all the evidence in the light most favorable to the finding

and judgment. J.F.C., 96 S.W.3d at 266; S.B., 207 S.W.3d at 884. This

means that we must assume that the fact-finder resolved any disputed facts in

favor of its finding if a reasonable fact-finder could have done so. J.F.C., 96

S.W.3d at 266; S.B., 207 S.W.3d at 884. We must also disregard all evidence

that a reasonable fact-finder could have disbelieved. J.F.C., 96 S.W.3d at 266;

S.B., 207 S.W.3d at 885. We must consider, however, undisputed evidence

even if it is contrary to the finding. J.F.C., 96 S.W.3d at 266; S.B., 207

S.W.3d at 885. That is, we must consider evidence favorable to termination

if a reasonable fact-finder could, and disregard contrary evidence unless a

reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005); S.B., 207 S.W.3d at 885.

This higher burden of proof also elevates the appellate standard of factual

sufficiency review. C.H., 89 S.W.3d at 25; S.B., 207 S.W.3d at 885. “[A]

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finding that must be based on clear and convincing evidence cannot be viewed

on appeal the same as one that may be sustained on a mere preponderance.”

C.H., 89 S.W.3d at 25; S.B., 207 S.W.3d at 885. In considering whether the

evidence of termination rises to the level of being clear and convincing, we

must determine whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction that the grounds for termination

were proven. C.H., 89 S.W.3d at 25; S.B., 207 S.W.3d at 885. Our inquiry

here is whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the parent violated one of the conduct provisions of

section 161.001(1) and that termination of the parent’s parental rights would

be in the best interest of the child. C.H., 89 S.W.3d at 28; S.B., 207 S.W.3d

at 885.

If, in light of the entire record, the disputed evidence that a reasonable

fact-finder could not have credited in favor of the finding is so significant that

a fact-finder could not reasonably have formed a firm belief or conviction in the

truth of its finding, then the evidence is factually insufficient. In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006). If we reverse on factual sufficiency grounds,

then we must detail in our opinion why we have concluded that a reasonable

fact-finder could not have credited disputed evidence in favor of its finding.

J.F.C., 96 S.W.3d at 266-67.

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 2. Endangerment and Course of Conduct

In part of her first point, Appellant complains that there is legally and

factually insufficient evidence supporting the jury’s findings that she knowingly

placed or knowingly allowed K.B. and P.B. to remain in conditions or

surroundings that endangered their physical or emotional well-being and that

she engaged in conduct or knowingly placed them with persons who engaged

in conduct that endangered their physical or emotional well-being. See T EX.

F AM. C ODE A NN. § 161.001(1)(D), (E) (Vernon Supp. 2007). We disagree.

Endangerment means to expose to loss or injury, to jeopardize. Texas

Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); see also In

re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection (D), it is

necessary to examine evidence related to the environment of the child to

determine if the environment was the source of endangerment to the child’s

physical or emotional well-being. In re D.T., 34 S.W.3d 625, 633 (Tex.

App.—Fort Worth 2000, pet. denied). Conduct of a parent in the home can

create an environment that endangers the physical and emotional well-being of

a child. In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no

writ). For example, abusive or violent conduct by a parent or other resident of

a child’s home may produce an environment that endangers the physical or

emotional well-being of a child. See id. at 776-77; Ziegler v. Tarrant County

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Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ

ref’d n.r.e.).

Under subsection (E), the relevant inquiry is whether evidence exists that

the endangerment of the child’s physical well-being was the direct result of the

parent’s conduct, including acts, omissions, or failures to act. In re R.D., 955

S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. Tex.

Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.

App.—Dallas 1995, no writ). Additionally, termination under section

161.001(1)(E) must be based on more than a single act or omission; a

voluntary, deliberate, and conscious course of conduct by the parent is

required. T EX. F AM. C ODE A NN. § 161.001(1)(E); D.T., 34 S.W.3d at 634; In re

K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). Under

either subsection (D) or (E), it is not necessary that the parent’s conduct be

directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d

at 533.

Because the evidence concerning these two statutory grounds for

termination is interrelated, we consolidate our examination of it. In re J.T.G,

121 S.W.3d 117, 126 (Tex. App.—Fort Worth 2003, no pet.); In re B.R., 822

S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (recognizing the link

between a parent’s conduct and a child’s conditions and surroundings). The

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record contains the following evidence of subsection (D) environmental

endangerment and subsection (E) course of conduct endangerment of the

physical or emotional well-being of the children.

The evidence shows Appellant has a history of leaving all three children

with Phillip B. and that she continually failed to investigate or be aware of

injuries to O.L.A. In doing so, Appellant continually allowed all three children

to remain in conditions and surroundings that endangered both their physical

and emotional well-being, and also placed them with a person who engaged in

conduct that endangered both their physical and emotional well-being.

Appellant left all three children, including K.B. and P.B., with Phillip B. on

numerous occasions even though she knew that he had, during fits of anger,

kicked holes in the walls and doors. Appellant admitted that Phillip B.’s temper

frightened her to a degree that she feared for both herself and the children.

Appellant was also aware that Phillip B. had brought home a boat oar that she

believed he might be using to physically punish both O.L.A. and K.B. She even

testified that she had seen the boat oar’s transformation—from a boat oar to

a taped up paddle. There is evidence that blood stains were clearly on the boat

oar. She was aware of Phillip B.’s past conviction for injury to a child. She

also demonstrated a continual pattern of ignoring or failing to investigate

multiple injuries to O.L.A.—injuries that occurred while he was left with Phillip

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B.—despite the equally disturbing pattern that people outside the home quickly

recognized the injuries as signs of child abuse.

Furthermore, both psychologists and counselors alike testified that

Appellant repeatedly denied or failed to acknowledge that abuse was occurring

in her home. Even when she did admit that Phillip B. had physically abused

O.L.A., she stated she was “shocked” to learn it was occurring. Both

psychologists and counselors testified that this pattern of denial is Appellant’s

proclivity and created a dangerous environment to all three children’s physical

and emotional well-being.

We have carefully reviewed the entire record. Looking at all the evidence

in the light most favorable to the jury’s finding, giving due consideration to

evidence that the fact finder could reasonably have found to be clear and

convincing, we hold that a reasonable trier of fact could have formed a firm

belief or conviction that Appellant knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered their physical

or emotional well-being, and that she engaged in conduct or knowingly placed

the children with persons who engaged in conduct that endangered the

children’s physical or emotional well-being.

Further, in light of the entire record, we hold that there is no evidence so

significant that a fact-finder could not reasonably have formed a firm belief or

15
conviction that Appellant knowingly placed or knowingly allowed the children

to remain in conditions or surroundings that endangered their physical or

emotional well-being and that she engaged in conduct or knowingly placed the

children with persons who engaged in conduct that endangered the children’s

physical or emotional well-being. In sum, we hold there is legally and factually

sufficient evidence to support the jury’s verdict. We overrule this part of

Appellant’s first point.

3. Court Ordered Service Plan

In the remaining part of her first point Appellant challenges the legal and

factual sufficiency of the evidence supporting the jury’s finding that Appellant

failed to comply with the provisions of a court order that specifically established

the actions necessary for Appellant to be reunited with K.B. and P.B. See T EX.

F AM. C ODE A NN. § 161.001(1)(O).

When determining the sufficiency of the evidence in parental termination

cases, our inquiry is simply whether, on the entire record, a fact-finder could

reasonably form a firm conviction or belief that the parent violated one of the

conduct provisions of section 161.001(1) and that the termination of the

parent’s parental rights would be in the best interest of the child. C.H., 89

S.W.3d at 28; S.B., 207 S.W.3d at 885.

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 Because Appellant has not challenged whether the sufficiency of the

evidence would be in K.B. and P.B.’s best interests and because we hold that

a reasonable fact-finder could have formed a firm belief or conviction that

Appellant’s parental rights should be terminated under Texas Family Code

sections 161.001(1)(D) and (E), we need not address whether the evidence also

supports termination under section (O).

B. Effective Assistance of Counsel

In her second point, Appellant complains that she was denied effective

assistance of counsel because her trial lawyer failed to preserve her legal and

factual sufficiency points for appeal. Appellant further complains she was

denied effective assistance of counsel because her trial lawyer withdrew from

the case prior to any meaningful and necessary post-judgment procedural

protections or relief.

In Texas, indigent parents such as Appellant have a statutory right to

effective assistance of counsel in involuntary parental rights termination cases.

T EX. F AM. C ODE A NN. § § 107.013(a)(1), 263.405(e) (Vernon Supp. 2007); In

re M.S., 115 S.W.3d 534, 544 (Tex. 2003). To establish ineffective

assistance, Appellant must first show that counsel’s performance was deficient.

M.S., 115 S.W.3d at 545. Second, Appellant must show that the deficient

performance prejudiced her case. Id.

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 The gist of Appellant’s complaint is that trial counsel withdrew from

representation the day after the trial court entered its final order, and he was

the only one who could be sufficiently specific in a statement of points or other

post-trial motion to effectively preserve error for appeal as to the legal and

factual sufficiency of the evidence. The assumption on which her complaint is

based is that the statement of points that her appellate counsel filed was

deficient to preserve error as to legal and factual sufficiency of the evidence.

The State concedes that the statement of points that appellate counsel

filed did timely and properly preserve error as to the legal and factual

sufficiency of evidence as to each of the jury’s findings. We have thus

addressed those issues on the merits in light of the entire record. Moreover,

even if we determined that trial counsel’s performance was deficient in

withdrawing without preparing and filing a timely statement of points with

sufficient specificity, Appellant has not set forth any additional facts, reasons,

or arguments not made by appellate counsel that only her trial counsel could

have made. Therefore, she cannot demonstrate that any deficient performance

of trial counsel in withdrawing and not filing a statement of points prejudiced

her case. We overrule her second issue.

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 C. Due Process and Section 263.405(i) of the Texas Family Code

In her third and fourth points Appellant complains that her due process

rights were violated because section 263.405(i) of the family code bars this

court from considering any issues not specifically presented to the trial court

in a timely filed statement of points. Further, Appellant complains that such a

procedure arises to the level of fundamental error and can be raised for the first

time on appeal.

Because a timely statement of points was filed listing the issues raised on

appeal, we need not consider these points.

IV. Conclusion

Having overruled Appellant’s first point in part and declined to address her

first point in part, having overruled Appellant’s second point, and having not

addressed Appellant’s third and fourth points, we affirm the trial court’s

judgment.

ANNE GARDNER
JUSTICE

PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: March 13, 2008

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