COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-077-CV
IN THE INTEREST OF M.W., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Sonja P. appeals from the trial court order terminating her
parental rights to M.W. In one issue, she challenges the factual sufficiency of
the evidence to support the trial court’s best-interest finding. We affirm.
Evidence
M.W. was born in 2002 when Sonja was fifteen years old. At the time
of trial, M.W. was four and Sonja was nineteen. M.W.’s father, Daniel W., left
Sonja when M.W. was four months old.2
1
See T EX. R. A PP. P. 47.4.
2
Daniel was served with process in the trial court proceedings but did not
make an appearance. The trial court terminated Daniel’s parental rights, and
Daniel has not filed an appeal.
In 2005, when M.W. was almost three, she contracted bacterial
meningitis, resulting in the amputation of both legs at the knees, all of the
fingers on her left hand, and multiple fingers on her right hand. She began to
receive physical therapy at Cook Children’s Medical Center in June 2005.
Teresa Brumbaugh, a therapist at Cook Children’s, testified that M.W.’s
therapy initially included wound care because M.W. had open wounds and a
skin graft. Brumbaugh testified that without adequate wound care, the wounds
would take longer to heal and could lead to a life-threatening situation.
Brumbaugh intended to work with M.W. two to three times per week, but Sonja
took her to only about half of the scheduled appointments. Brumbaugh
stressed the importance of attending the appointments to Sonja both by phone
and in person. Sonja’s explanation for the missed appointments was lack of
transportation. When the hospital arranged transportation for her, Sonja
cancelled the arranged transportation, saying that she had transportation of her
own, but then something would fall through and M.W. would miss the
appointment. Brumbaugh testified, “There was always something, but typically
it revolved around transportation.”
When Sonja did take M.W. to the hospital for therapy, M.W. was often
visibly dirty and smelled of urine. Brumbaugh was concerned about infection
control because M.W.’s bandages were dirty. She instructed Sonja on how to
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remove M.W.’s bandages and clean her wounds, but she did not “think that
that was probably getting done.” After the State removed M.W. from Sonja’s
home in September 2005 and placed her in foster care, M.W. attended all of
her appointments. Brumbaugh testified that M.W. made minimal progress while
she lived with Sonja and made better progress after the State placed her in
foster care.
Brumbaugh testified that when Sonja attended M.W.’s appointments, she
appeared to be nurturing and bonded with M.W. and was very affectionate and
loving towards M.W. during wound care sessions, which were very painful.
Carrie Carney, another Cook Children’s therapist who worked with M.W.
from June 2005 through April 2006, testified that M.W. missed six of thirty-
seven scheduled therapy appointments early in her treatment, and another nine
appointments were cancelled. Carney said she was concerned that the missed
appointments would delay M.W .’s wound healing, which would in turn delay
the start of range of motion therapy and prosthetics fitting. Like Brumbaugh,
Carney testified that when Sonja did bring M.W. to appointments, M.W. was
dirty and smelled of urine, which made Carney worry about M.W.’s wounds
becoming infected. Carney said that M.W. made better progress after she was
placed in foster care.
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Stacie Hall is an investigator for the Department of Family and Protective
Services (“the Department”). She testified that she received a referral regarding
M.W. in June 2005 because M.W. had missed several therapy appointments.
Hall explained to Sonja that Medicare-funded transportation was available to her
and told her that lack of transportation was no longer an excuse for missing
therapy appointments. But Sonja continued to miss appointments anyway, and
Hall received another referral regarding M.W. in September 2005. When Hall
visited Sonja’s home as part of her investigation, she found that M.W. and her
one-year-old sister, M.M., were healthy and clean and that M.W. had on clean
bandages. Hall nevertheless made a finding of “reason to believe for medical
neglect,” and removed M.W. from Sonja’s home. M.M. was not removed.
Christine Petrone, a Department caseworker, testified that she received
M.W.’s case in October 2005 and developed a service plan for Sonja. Sonja
submitted to a psychological assessment but failed to attend counseling
sessions, again citing lack of transportation as the cause. Petrone told Sonja
that she needed to attend M.W.’s medical appointments as part of her service
plan, but Sonja continued to miss the majority of appointments.
Apart from a short stint as an employee at a retail store, Sonja was
unemployed. Petrone testified that Sonja did not have stable housing; at times
she lived in an apartment, and at other times she lived with friends. When
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Petrone transferred the case to another caseworker in April 2006, Sonja was
living in an apartment paid for by her boyfriend, John M. The Department’s
permanency plan was still reunification at that time, though Petrone had
concerns about Sonja’s ability to maintain stable employment and housing and
her willingness to take M.W. to her therapy appointments.
The Department placed M.W. with John M.’s stepmother, Tonie S., for
nine months. Tonie testified that she took M.W. to all of her appointments but
that Sonja attended only half of the appointments. Sonja went to Tonie’s
house to visit M.W . on weekends, and she called M.W. every night. Tonie
thought Sonja was making good progress in the service classes. Eventually,
Tonie returned M.W. to Department care because her husband developed health
problems and he and Tonie did not like the way the Department treated them.
Janice Barker works for the “protective homemakers department” of
Volunteers of America. She began working with Sonja on her homemaking
skills in August 2006. Barker testified that Sonja’s home “started off clean,
then we went through a period where it was not clean, and then after her baby
was born, it seemed to get back on track.” The “period where [the home] was
not clean” was when several people moved in with Sonja, which made Barker
concerned because “it was very crowded. It seemed to get out of control.”
Barker observed Sonja visit with M.W. at a Department office, and she testified
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that the visit went very well, Sonja was nurturing and loving with M.W., and
Sonja and M.W. were bonded.
Emma Lopez, a “social service tech” with the Department, assisted
Department caseworkers with parent-child visitations. She observed visitations
between Sonja and M.W. beginning in March 2006. Sonja brought her other
two children to the visitations. One came to the visitations twice without
shoes, and other times her clothes were dirty. The other child appeared clean,
but his blanket had a bad smell, and Sonja propped his baby bottle up to allow
him to feed himself, even after Lopez advised Sonja that doing so could lead to
infections. Sonja had a difficult time paying attention to all three children
during the visitations. But Lopez also testified that M.W. required close
watching to make sure she didn’t injure herself, and she was never injured
during one of the visitations.
Sandy Balderas, another Department caseworker, testified that, in
December 2006, she investigated a report that Sonja’s other two children were
physically neglected. When Balderas visited Sonja’s home, she saw a marijuana
cigarette in an ashtray, and the smell of marijuana was very evident as soon as
she entered the home. Sonja admitted that she had smoked marijuana about
two hours before Balderas’s arrival and said she smoked marijuana twice a day.
Sonja’s middle child was naked; Sonja said she was toilet training her. The
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kitchen was “crawling with roaches.” Balderas opened the door to the
apartment’s balcony, but could not walk onto the balcony because it was full
of trash and pizza boxes. Balderas saw fist-sized holes in the walls throughout
the apartment; Sonja told her they resulted from furniture being moved around.
The mattress in the bedroom was on the floor and had no linens on it. Balderas
found several dirty diapers on the bathroom floor. Based on these findings,
Balderas removed the children from Sonja’s home and placed them with Tonie
S.
Judy Olson is a child advocate who visited M.W. several times while she
lived with Tonie S. and again while M.W. lived with the foster parents with
whom she lived at the time of trial. Olson described M.W. as “very happy, very
settled . . . and pleasant.” M.W. was doing very well in school and making
progress with the use of her prosthetics. M.W. was scheduled for surgery to
have part of one leg bone removed soon after trial to make one of her
prosthetics fit more comfortably. Her foster parents at the time of trial were
not interested in adopting her.
Olson also visited Sonja at Sonja’s apartment. The apartment was fairly
tidy, but the carpet was very dirty. Olson said she had talked to Sonja about
how difficult it would be for her to care for three small children, especially when
one needed to attend numerous medical appointments and another one was a
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baby. Olson was concerned that Sonja would tell her what Olson wanted to
hear and not tell her the whole story. Sonja told Olson that she had a job at a
retail store but could not show her a pay stub, and the manager of the store
had no record of Sonja ever working there.
Olson recommended that Sonja’s rights be terminated and said that
termination was in M.W.’s best interest. She testified that M.W. needed to live
with a family who can care for her, provide a clean, safe, loving environment
for her, and allow her to continue with her medical therapy and education.
Tomika Hardin was M.W.’s caseworker at the time of trial. Hardin
testified that when she first received the case in December 2006, she visited
Sonja’s home. Sonja’s middle child was naked, the home was a mess, and the
baby was on the floor on a mattress with a bottle propped in his mouth. She
found trash all over the floors, roaches crawling around, holes in the walls, and
trash on the patio. Hardin was concerned about returning M.W. to that
environment because M.W needed a clean and sterile home environment. At
the time of trial, Sonja was living with her sister and her sister’s husband—who
had a criminal history—in Mineral Wells. She told Hardin she planned to move
to Mesa, but she had not told Hardin what the living arrangements would be
there.
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Hardin had read about Sonja’s marijuana use, but she saw no evidence
of marijuana in the home. Sonja had attended twenty-seven of twenty-eight
drug counseling sessions, with the twenty-eighth scheduled for the week of
trial, but her last few drug tests were positive for marijuana.
Hardin testified that her major concern with Sonja was lack of stability
because she did not have a job and her boyfriend was paying her bills. She said
termination was in M.W.’s best interest because she needs a stable, loving
environment with some sense of security. Hardin testified that M.W. was
adoptable and very loving, very affectionate, and very friendly. She also said
that M.W. had a loving relationship with Sonja.
Sonja testified that she had moved several times while the case was
pending, but denied that she ever lived with friends. She said her
boyfriend—the father of her other two children—gave her money for rent, food,
diapers, baby formula, clothing, and household supplies. She testified that she
and her boyfriend had rented a trailer home and expected to move in shortly
after trial. She acknowledged that her boyfriend had not participated in any of
the services in the service plan and that he had refused to take a drug test for
the Department.
Sonja explained that she missed many of M.W.’s therapy appointments
because she did not have stable transportation; her truck was always breaking
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down, and the Medicaid transport arranged by Cook Children’s was always late.
Sonja testified that she completed all of the parenting classes that were
part of her service plan and took three additional classes on her own initiative.
She said that her final drug counseling session was scheduled for the day after
trial and that she had been clean since December 9, 2006.
Sonja said she was looking for work and had submitted an application for
a job cleaning houses, which she expected to pay $125 per week. She had
been admitted to Everest College and intended to earn her high school degree.
Discussion
A. Preservation
Before turning to Sonja’s factual sufficiency issue, we must address the
State’s argument that Sonja failed to preserve her issue for our review because
she failed to request a hearing in the trial court on her statement of points filed
under family code section 263.405(b). See T EX. F AMILY C ODE A NN.
§ 263.405(b) (Vernon Supp. 2007). Relying on the Dallas court of appeals’s
opinion in In re R.J.S., the State contends that a parent appealing a termination
in a case brought by the Department must “present” a section 263.405(b)
statement of points by both timely filing the statement and requesting a
hearing. 219 S.W.3d 623, 626 (Tex. App.—Dallas 2007, pet. denied).
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This court recently rejected the identical argument and declined to follow
our sister court’s precedent. In re J.A.B., No. 02-06-00404-CV, 2007 WL
3037720, at *2 (Tex. App.—Fort Worth Oct. 18, 2007, no pet. h.). For the
same reasons articulated in our opinion in that case, we reject the State’s
preservation argument. See id.
B. Factual sufficiency of best-interest finding
In her sole issue, Sonja argues that the evidence is factually insufficient
to support the trial court’s finding that termination of her parental rights is in
M.W.’s best interest.
When 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 the 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 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.
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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
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
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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.
We will consider the Holley factors applicable to this case.
1. Present and future physical needs and physical dangers
Of all the Holley factors, M.W .’s current and future physical needs are
paramount. The evidence showed that, because of her physical disability,
M.W. will need extraordinary medical and therapeutic care now and in the
future. The record shows that Sonja was unable to provide reliable
transportation for M.W. during the critical wound-care phase of M.W.’s therapy,
even when free transportation was arranged for her. Moreover, the record
shows that Sonja was unable to keep her home clean when M.W. needed a
clean environment to minimize the risk of infection. While the immediate and
serious risk of wound infection had apparently abated by the time of trial
because M.W.’s wounds had healed, she was scheduled to undergo surgery to
remove part of a bone in her leg shortly after trial, and Carney testified that
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M.W.’s prosthetics could cause new wounds, either of which would renew the
risk of infection. These factors weigh heavily in favor of termination.
2. Present and future emotional needs
The record shows that M.W. is bonded to Sonja and has an appropriate
and loving relationship with her. This weighs against termination. The record
also shows that M.W. is very happy with her foster parents, is very outgoing,
easily adapts to new people in her life, and is adoptable. Thus, while M.W. is
bonded to Sonja, an adoptive family should be able to meet her emotional needs
in the future.
3. Sonja’s parental abilities
The record shows that Sonja’s parental abilities are less than optimal.
She was unable to provide a clean, stable home for any of her children. She
admitted to smoking marijuana while caring for her two younger children. Sonja
had difficulty managing all three children during visitations with M.W. Even
after warnings about allowing her youngest child to feed from a propped-up
bottle, Sonja continued that practice.
4. Programs available to assist Sonja to promote M.W .’s best
interest
Sonja completed the parenting classes required by her service plan, plus
another three she completed on her own initiative. But the record also shows
that she failed or refused to use the transportation program available to help her
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take M.W. to her therapy appointments. Thus, the evidence shows that
programs are available to assist Sonja, but she is not always willing to use them
for M.W.’s benefit.
5. Any excuse for Sonja’s acts and omissions
Sonja’s relatively young age was one excuse for her acts and omissions,
but not one that weighs against termination. She made excuses for her
behavior, but various witnesses expressed frustration with her explanations.
Brumbaugh said, “There was always something” to prevent Sonja from taking
M.W. to therapy. Petrone said, “[I]t was one excuse after another.” Hardin
said Sonja was a lot of talk and no action.
6. Other considerations
Sonja argues that the trial court was forced to make a premature
termination decision by family code section 263.401’s eighteen-month deadline
to commence trial or dismiss a termination suit. See T EX. F AM. C ODE A NN .
§ 263.401 (Vernon Supp. 2007). She also suggests that the trial court should
have denied the Department’s petition for termination and ordered M.W. to
remain in foster care until Sonja could prove that she was drug free, find
employment, establish a stable home, and show that she was capable and
willing to act in the best interest of a child with M.W.’s exceptional needs. But
as the State responds, Sonja already had eighteen months from the time the
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Department filed suit to accomplish these tasks, and she had accomplished
none of them. Sonja does not explain how further delay and perhaps another
trial are consistent with the presumption that prompt and permanent placement
is in M.W.’s best interest. See id. § 263.307(a).
Conclusion
This is not a simple case. The evidence does not weigh entirely in favor
of termination. All witnesses agreed the M.W. was bonded to Sonja and that
they had a loving relationship, but the evidence also shows that Sonja is unable
to meet M.W.’s physical needs. Mindful that we must give due deference to
the fact-finder’s findings and not supplant them with our own, and considering
the entire record in this case, we hold that a reasonable fact-finder could form
a firm belief or conviction that termination is in M.W.’s best interest. See In re
C.H., 89 S.W.3d at 28. We therefore overrule Sonja’s sole issue and affirm the
trial court’s termination order.
PER CURIAM
PANEL F: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: March 6, 2008
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