COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-239-CV
IN THE INTEREST OF C.H.
AND M.H., THE CHILDREN
AND IN THE INTEREST OF
E.M.B., R.H.D.G., AND J.G.G.,
MINOR CHILDREN
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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After a trial, a jury found by clear and convincing evidence that Appellant
A.G. (Mother) knowingly placed or knowingly allowed her five children, E.M.B.,
R.H.D.G., J.G.G., C.H., and M.H., to remain in conditions or surroundings
which endangered their physical or emotional well-being; engaged in conduct
or knowingly placed her children with persons who engaged in conduct which
1
… See Tex. R. App. P. 47.4.
endangered the children’s physical or emotional well-being; and failed to comply
with the provisions of a court order that specifically established the actions
necessary for the return of the children, who had been in the permanent or
temporary managing conservatorship of the Texas Department of Family and
Protective Services for not less than nine months as a result of the children’s
removal from Mother under chapter 262 for the abuse or neglect of the
children.2 The jury also found by clear and convincing evidence that termination
of the parent-child relationship between Mother and the children was in the
children’s best interest. 3 The trial court made the same findings and terminated
Mother’s rights to the children.
The State contends that we should dismiss Mother’s appeal as to the
termination of her rights to the three older children, E.M.B., R.H.D.G., and
J.G.G. Trial Court Cause Number 2006-40924-362, regarding E.M.B.,
R.H.D.G., and J.G.G., and Trial Court Cause Number 2007-40820-362,
regarding C.H. and M.H., were consolidated for trial. We decline the State’s
invitation to revisit our acceptance of Mother’s amended notice of appeal, our
grant of the State’s motion that the appellate record be supplemented, and our
implicit denial of the State’s alternate motion to dismiss Mother’s appeal of the
2
… See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O) (Vernon 2008).
3
… See id. § 161.001(2).
2
termination of her parental rights to E.M.B., R.H.D.G., and J.G.G. because
these cases were consolidated for trial, the jury delivered one verdict, and the
trial court told Appellant in open court after the verdict was announced that she
had “the right to appeal this case.” [Emphasis added.]
In eight points, Mother contends that the evidence is legally and factually
insufficient to support each finding. Because we hold that the evidence is
legally and factually sufficient to support the endangerment findings 4 and the
best interest finding,5 we affirm the trial court’s judgments.
The jury heard the following evidence in these cases, cases where
termination was sought after reunification failed. The State’s first witness was
Mother. Mother testified that CPS contacted her in August 2006 because
someone had reported that she was using methamphetamine. At the time,
Mother and her three children, E.M.B., R.H.D.G., and J.G.G., were living with
Mother’s boyfriend, C.S.H. After CPS initially contacted her in August 2006,
Mother withdrew E.M.B. from school to prevent CPS from taking her without
Mother’s knowledge, left C.S.H.’s apartment, and moved into her
grandmother’s home.
4
… See id. § 161.001(1)(D), (E).
5
… See id. § 161.001(2).
3
Mother admitted at trial that she had in fact been smoking
methamphetamine every other day or every day in August 2006. She at first
refused to take a drug test because she knew it would be dirty. Mother and the
three children all tested positive for methamphetamine. CPS removed the
children on August 30, 2006.
Mother admitted at trial that she, C.S.H., and her brother had smoked
methamphetamine in the home with the three children before the removal, that
her mother and grandmother both knew she used, and that they both knew she
used when the children were with her. She admitted that the children had seen
her under the influence of methamphetamine. She said that they did not see
her using but that they were in the home under her care when she was using.
Mother testified that methamphetamine makes you stay up for days, that she
did not think that she was a good mother when she was using
methamphetamine, and that she was not able to meet her children’s emotional
or physical needs when she was using methamphetamine.
Mother admitted that the drugs in the children’s systems put them in
danger, that her home life in August 2006 was not good for them, and that she
placed them in danger. She admitted that her drug use when her children were
with her in the home endangered their physical or emotional well-being and that
her children did not deserve to be in that environment. She admitted telling
4
CASA advocate Carolyn Kirk that “[t]he kids ha[d] seen things and been around
things they shouldn’t have, and [that she] hope[d] it wo[uld]n’t affect them
later in life.”
At the time of the August 2006 removal, Mother’s children knew that
C.S.H. smoked marijuana; she was aware that he openly rolled cigarettes in
their presence. She testified at trial that she did not think that was a good
environment for them but that she allowed it to go on because she was not
“clearheaded at the time.” After she admitted to CPS that C.S.H. used
marijuana, she denied to CPS that he was her boyfriend because the CPS
worker told her that she could not be with him based on his drug use. She
testified that she stayed with him against CPS’s advice because she cared for
him and loved him.
Mother also testified that C.S.H. sold marijuana and that after the
removal, she turned a blind eye to whether he was still dealing because she
was clean and had nowhere else to go. Yet she admitted that she actually had
received assisted housing in Gainesville for herself and her children (should they
be returned to her) but had lost it because C.S.H. lived with her in violation of
the housing agreement. In October 2006, he went to jail, and Mother and
D.G., R.H.D.G.’s father, began seeing each other again. Mother did not recall
if she spent a weekend with D.G. in October 2006.
5
Mother admitted that after the removal of her three children, she
overdosed on a mixture of alcohol and “quad bars” (xanax) that she had
obtained from C.S.H. and that her friends and family were concerned that she
had tried to kill herself. She told psychologist Nichelle Wiggins that she had not
tried to kill herself but had cut herself with a knife. After her overdose, she
started services with MHMR, but she admitted that she missed several
appointments and in fact had not been for a couple of months before trial, even
though she claimed that treatment was important to her and that her family
was supportive.
Mother’s testimony was unclear regarding when she started using
methamphetamine. At one point, she stated that she began using
methamphetamine before her oldest child, E.M.B., was born. Later, she
indicated that it might have been after E.M.B.’s birth; finally, she testified that
it was after the birth of her second child, R.H.D.G., which would indicate at
least more than three years’ use before the August 2006 investigation and
removal.
Mother also testified that she started using methamphetamine with D.G.
They married in 1999 when she was seventeen years old, a few days before
he went to prison after being convicted of aggravated assault with a deadly
weapon.
6
In 2000, she became pregnant with E.M.B., whose father was M.B.
Mother, M.B., and E.M.B. lived with Mother’s grandparents. Mother’s niece
testified that Mother used methamphetamine while she was pregnant with
E.M.B. and after E.M.B. was born.
By the time D.G. was released from prison in 2002, Mother testified, she
and M.B. had broken up due to his alcoholism, but Mother would visit him
“every once in a while.” Mother did not tell Wiggins that M.B. was an
alcoholic; rather, Mother told her that he was a good father and involved in their
daughter’s life.
After D.G. was released from prison, Mother and D.G. lived together at
his parents’ house, along with E.M.B. Mother then got pregnant with R.H.D.G.
D.G. was present for R.H.D.G.’s birth in 2003, but D.G. was not involved with
their son afterward for about a year, and Mother and her children lived with her
grandmother. When R.H.D.G. was about a year old, Mother allowed D.G. to
take their son for short periods of possession. She testified that she found out
that D.G. was using and dealing drugs in 2005. Mother used
methamphetamine with him, and she admitted at trial that she used drugs at
the beginning of her pregnancy with J.G.G. But she stated that she did not
discover that she was pregnant until she was five months along; J.G.G. was
born in January 2006. According to Mother, D.G. had forced her to sleep with
7
another drug dealer to whom D.G. owed money; that man was J.G.G.’s
biological father.
Mother admitted that she had allowed D.G. to take R.H.D.G. for a visit
on one occasion in the spring of 2006 even though she had had concerns
because of D.G.’s drug dealing and drug use. She also admitted that letting
him take R.H.D.G. was not a good idea and that D.G. brought R.H.D.G. home
at 5:00 a.m. once or twice. Mother also testified that she may have told
Wiggins that she “never denied [D.G.] any access to [R.H.D.G.] because, after
all, [D.G.] was [R.H.D.G.’s] father.” Michele Greer, Mother’s therapist for
almost a year during the case, testified that Mother had reported that D.G. had
kept R.H.D.G. from Mother for several weeks at one point.
Initially, Mother admitted that she used methamphetamine until August
2007, a year after her older three children were removed, but she stated that
she was only using maybe twice a month at that point and was not using with
C.S.H. or her family members. Later she testified that she last smoked
methamphetamine in February 2007 and that she did so with C.S.H. She also
testified that she last used drugs at the end of January or beginning of February
2007. She conceded that she was using while she was in drug treatment
during the first six months after the removal. Her last positive drug test
occurred in March 2007. Mother’s niece, who testified that she had last used
8
methamphetamine with Mother five or six years before trial and had not used
drugs for five or six years, testified that she did not know whether Mother still
used drugs but that she did know that Mother still hung out with the same
people with whom she had used drugs in the past.
Mother could not remember when she told the CPS worker that she was
pregnant with twins, fathered by C.S.H., but she delivered the twins early in
June 2007, while she still lived in the Gainesville home. Mother lied to the
hospital about the location of her older three children, stating that they were
staying with her grandmother. Mother admitted at trial that the hospital
expressed concerns about C.S.H. and her attentiveness to the twins. Although
Mother admitted drug use during the pregnancy with the twins and that the
drug use put them in danger, she testified that she did not believe that her drug
use during the pregnancy endangered their health. The twins were not tested
for the presence of drugs at their birth. After CPS found out that the twins had
been born, CPS removed the twins and placed them with their paternal
grandfather and his wife.
After admitting that she had used methamphetamine during her first stint
of outpatient drug treatment, Mother attended outpatient drug treatment again
beginning in September 2007, after the twins’ birth. The plan was for her to
attend individual counseling sessions once a month and outpatient treatment
9
twice a week for ninety days. She testified that she got a certificate for
completion but did not know if she had completed the required number of
sessions. The progress notes in State’s Exhibit 9 indicate that she “was seen
regularly for individual counseling and attended group” counseling [twice a]
week, “successfully completed the outpatient treatment program,” “met [the]
goals and objectives on her treatment plan,” and received a certificate for
successfully completing the program.
Mother also testified that she went to NA and AA at first but eventually
quit because she did not find it helpful. She was not attending at the time of
trial, and it had “been a while” since she had last attended; she had “been to
a few here and there” despite the trial court’s order that she attend weekly.
She admitted that despite her testimony at a prior hearing that she was working
the steps of AA, she might not have been in fact working the steps. She could
not explain step one, three, or four at trial. She testified at trial that she was
not an alcoholic, that she was a recovering addict, and that she did not have
a current drug problem.
Although Mother testified that her family members did not give her drugs
when she initially began using, she admitted that they did provide her with
drugs later. After a family group conference in December 2006, she told the
CPS caseworker that her mother “use[d] all her money up at the beginning of
10
the month on drugs and then [had] to rely on [her own mother, the children’s
great-grandmother] for care,” that her mother and stepfather used on a regular
basis, and that they were “skitzing on drugs” during the family group
conference.
In October 2006, Mother began seeing Greer. Mother attended all the
October and November sessions, missed one in December and one in January,
attended only one in February, and attended three in March 2007 before Greer
stopped the services because Mother’s obstetrician had ordered her to be on
bed rest. According to Greer, she saw Mother again for one visit in July 2007
and last saw Mother in August 2007, when she terminated the sessions
because of the missed appointments and lack of progress.
Greer testified that Mother saw CPS as being unfair and did not feel
responsible for the initial removal. Even though Mother would sometimes admit
that her drug use caused the removal, she did not seem to understand the
effect her drug use had on the children or accept her role in the removal. Greer
testified that such acceptance would indicate that a person could make changes
to avoid repeating the same mistakes in the future. Greer also testified that
Mother’s story about her substance abuse changed over the period of
counseling. Greer opined that in addition to her drug use, Mother had other
issues, including bipolar disorder, for which Greer believed Mother did not seek
11
appropriate treatment; long-standing maladaptive personality traits, like
dependency; and some impulsivity.
Greer also testified that Mother, whose IQ was 76 (in the borderline
range—below 70 indicates mild mental retardation), made only minimal progress
toward the therapeutic goals of increasing her adaptive coping skills, becoming
self-motivated, and decreasing her dependency on others. As evidence of her
conclusion, Greer pointed to Mother’s choice to spend four days with D.G. and
do drugs with him in October 2006, her choice to visit the children the next day
after she used drugs, and her choice not to follow the doctor’s instructions
regarding bed rest when she was pregnant with the twins, wanting to please
others instead of putting the twins’ needs first. Greer also testified that Mother
had difficulty setting boundaries in her relationships, pointing to her
relationships with the children’s fathers. Greer concluded that Mother never
showed an ability to distance herself from negative influences and people but
seemed to gravitate toward them. Greer testified that when she terminated
counseling in August 2007, Mother was not able to function independently,
was not taking responsibility for her actions, and was not making good choices
in relationships. But Greer also testified that Mother is a very caring person,
that it was clear that Mother loved her children, and that she cared about other
people, just too much.
12
About three months after the twins’ birth, on September 14, 2007,
Mother began seeing Jim Chambers for counseling. At the beginning, she
attended weekly. But she only went twice in November, cancelling one
appointment and “no-showing” another, and did not go at all in December.
Nevertheless, she testified at a hearing in December that she was attending
counseling regularly. After the children were returned in December 2007 and
January 2008, she attended one counseling session in January.
Against the wishes of CPS and CASA, the older three children were
returned to the home in a monitored return on December 22, 2007, and the
twins were returned to the home in a monitored return on January 10, 2008.
Mother worked nights, so C.S.H., who had also participated in some services,
cared for the children in her absence. Mother had testified in December before
the return that if C.S.H. did anything wrong, he would be out and that she
would put her children before him. One week after the older children were sent
home, he was arrested for evading arrest. Mother testified that she did not ask
for details because she was not involved in his actions and did not care to
know. She admitted at trial that it would have been a good idea to know what
C.S.H. was doing even outside her presence and that of her children. His arrest
did not lead Mother to question whether the relationship should continue.
13
Mother testified that C.S.H.’s “drinking a lot” after the children’s return
caused her concern but that she did nothing to stop it; instead she started
staying home with them. She also admitted that she drank alcohol despite the
warnings about it that she had received in drug treatment.
Mother admitted at the termination trial that she had lied at a November
2, 2007 hearing scheduled by her attorney to get the children returned when
she testified that she had no knowledge that C.S.H. had been dealing drugs
since they had been together. She stated that she did not know why she had
lied and admitted that she might have thought she needed to lie to get the
children back in her possession.
K.H., C.S.H.’s stepmother, testified that she had been concerned about
the planned return of the twins to Mother and C.S.H. because they were not
going to the classes they were supposed to attend and C.S.H. was still doing
drugs and drinking alcohol. K.H. also testified that after the twins were born
but before their removal, Mother had told her that C.S.H. was selling drugs.
After the children came home, E.M.B. made an outcry against C.S.H.
Mother testified that her mother, who had spent the night on Tuesday, January
29, 2008, told her two days before the children were again removed on
February 1 about the outcry. Mother also testified that her mother was not
using drugs at that particular time and that she thought that having her around
14
the children was a good choice because her mother was not using drugs that
day. Early on Wednesday, January 30, 2008, Mother drove C.S.H. to the jail,
where he turned himself in on a different matter. After Mother took E.M.B. to
school, the grandmother told her that E.M.B. had reported that C.S.H. was
touching her when Mother was at work. Mother testified that she believed her
mother. When Mother talked to E.M.B. about it after school, Mother testified,
E.M.B. denied it. On Wednesday night, Mother went to pick C.S.H. up at the
jail. She took the twins and E.M.B. In the car, Mother asked C.S.H. about the
allegations in front of E.M.B. Mother testified that E.M.B. had asked her to talk
to C.S.H. about it in front of E.M.B. because E.M.B. was afraid that she would
get in trouble with C.S.H.
On Thursday, January 31, 2008, C.S.H. went to work, and Mother and
all five children stayed at the house. Mother called K.H. to come over and
speak to E.M.B. that afternoon. After speaking to E.M.B., K.H. told Mother
that “something had to have happened; [E.M.B.’s] not lying about it,” and K.H.
made it clear to Mother that she had to make a decision. K.H. testified that she
told Mother that she had to either get the children out of the house or get
C.S.H. out of the house. Mother testified that she had known that she had to
get rid of C.S.H. She initially testified that he stayed somewhere else that
night, but after being confronted with her testimony from the February 21,
15
2008 hearing that he had stayed home Thursday night, she testified that he had
spent Thursday night at home.
On Friday, February 1, 2008, Mother stayed at home with the children.
That afternoon, she dropped R.H.D.G. and J.G.G. off at C.S.H.’s place of
employment before taking E.M.B. to karate class. After class, Mother stopped
by her grandmother’s home but did not tell her about E.M.B.’s outcry. Mother
admitted that she had known that if she told her grandmother about E.M.B.’s
outcry, then her grandmother would tell her to end her relationship with C.S.H.
Mother then picked up C.S.H., R.H.D.G., and J.G.G.; E.M.B. was also in the
car. When they got home, the police were waiting.
Mother testified that E.M.B. did not tell her that C.S.H. was in fact
touching her inappropriately until Friday night at the CPS office, after the
children were removed again. Mother also testified that E.M.B. told her that
she had at first denied the contact because she did not want CPS to take her
away from Mother. Mother testified that it would be important to a child who
has been molested to know that her parent would believe her and protect her.
Mother’s niece testified that Mother told her on Thursday, the day before
the second removal, that E.M.B. had told her on Wednesday that C.S.H. had
been touching her while Mother was at work. K.H. also testified that Mother
told her on Thursday that she thought that C.S.H. had touched E.M.B.
16
Mother's niece testified that when she asked Mother what she was going to do,
Mother said that E.M.B. lied a lot, that Mother did not know whether E.M.B.
was telling the truth, and that Mother did not think that C.S.H. would do
something like that. A week after the second removal, the niece testified,
Mother and C.S.H. were still together, and Mother told her that she was going
to stay with him because she did not believe that he had molested E.M.B.
E.M.B.’s therapist testified that E.M.B. told her that C.S.H. had touched
her privates, that it happened a lot and when Mother was at work, that she had
told Mother about it the first time it happened and had told Mother more than
once, that Mother kept asking her if it really happened, and that E.M.B. believed
that Mother believed C.S.H. instead of her.
On the Monday following the second removal, Mother called CPS worker
Amber O’Guinn to tell her that she had kicked C.S.H. out of the house. Mother
told Amber that she had not known that C.S.H. was abusing E.M.B. At her
visit with the children the day after her telephone call with Amber, despite
being told not to mention or bring up C.S.H., Mother told E.M.B. that she had
kicked C.S.H. out of the house. Mother testified that E.M.B. had asked her if
she had kicked him out. The trial court cancelled the visits at that point, and
Mother had no more visits before trial.
17
After the second removal, Mother called the older three children’s foster
mother “to check on them” and also told the foster mother that she had not
known about the abuse.
At the time of the second removal, Mother asked that the twins be placed
with foster parents instead of C.S.H.’s father and stepmother, with whom the
twins had stayed previously. CPS believed that one of the grandparents had
forewarned C.S.H. and Mother about the second removal. The twins were
placed with foster parents.
On February 23, 2008, according to Mother, C.S.H. kicked in the house
door, came in, started hitting her, and trashed the house. She went to the
neighbors and called 911. The officer who spoke to Mother at the scene
testified that she told him that C.S.H. had slapped her in the face, but the
officer saw no mark. C.S.H. denied the assault, and he told the officer that he
still lived there. The officer saw men’s clothes in the dresser. The police did
not arrest C.S.H.
Mother attended parenting classes. She completed one set by December
2006. She completed another set sometime after the twins were born. She
took only three weekly classes in the six weeks before trial in May 2008,
despite her testimony in a prior hearing that she was going to begin classes in
February 2008. Her last class was on April 9, 2008.
18
Mother missed one or two visits with her children because she forgot to
call in or because she overslept; otherwise, she attended all her scheduled visits
unless CPS cancelled them. She had to leave a visit after she hit R.H.D.G.; she
said they were just playing. She denied telling the children on two visits that
if they did not put on their jackets, she would not come back the following
week and agreed that such threats would not be appropriate.
After rescheduling a couple of times, Mother completed a psychological
evaluation with Wiggins in December 2006. The psychological evaluation
showed that she had a bipolar disorder and limited insight. Wiggins testified
that the chances of people with limited insight engaging in maladaptive behavior
and making poor decisions are very high. Wiggins also testified that Mother
had dependency issues and a tendency to rationalize poor decisions and to
externalize, or blame others, for her issues.
After the twins were born, Mother found a job at Family Dollar. After
about three days, she was terminated because of a past theft conviction.
Mother soon found a job with Jack-in-the-Box, which she still had almost nine
months later at the time of trial, despite quitting once and either quitting or
getting fired another time. This was her longest period of employment ever.
At the time of trial, Mother was living in Gainesville in the same home she
had lived in since at least December 2007. She testified that it was in the
19
children’s best interest to be returned to her because she’s their mother, she
loves them, and she’s “been there” for them.
Mother testified that at the time of the first removal, she had told the CPS
worker that it would be better for her children to be placed in foster care than
with a family member because her grandmother, whom she would have
preferred to care for the children, could not take care of herself and her
grandfather was sick. One of her aunts already had a CPS history, and the
other aunt was not chosen for a placement. Mother testified that her mother
and stepfather, who were present at trial, were current users of
methamphetamine.
E.M.B.’s therapist testified that after the second removal, E.M.B. was
terrified of the dark, had nightmares, and had wet herself. The therapist also
recommended that weekly therapy continue and testified that E.M.B. will
continue to need to work on and to be able to talk about the sexual abuse, that
she needs a parent who will follow through with her therapy, that she needs a
nurturing and supportive home environment, and that she needs to be believed
about the sexual abuse. She stated that E.M.B.’s caregiver will need to be
sensitive to her needs as she grows because dealing with the sexual abuse may
be long term. The therapist expressed concerns that if E.M.B. were returned
to Mother, Mother would not protect her from sexual abuse or be sensitive to
20
her needs regarding the sexual abuse. The therapist also stated that the more
times E.M.B. has to change homes, the harder that would be, because moving
would shake her sense of stability and her ability to trust. The therapist
testified that E.M.B.’s anxiety had decreased, that she was getting more settled
with her foster parents, feeling very close to them and safe with them, and that
she trusted her therapist. The therapist opined that the foster parents’ home
was a good environment for E.M.B. and that E.M.B. has bonded with them.
But E.M.B. loves Mother as well and is conflicted because she wants to be in
both places.
The therapist also testified that R.H.D.G. had started having some issues
with acting out sexually.
Stephanie, the foster mother of E.M.B., R.H.D.G., and J.G.G., testified
that when the children were originally placed in her home in August 2006, they
seemed very unfamiliar with routine and structure. E.M.B., who was in
kindergarten, had not mastered her colors and did not know her letters or
numbers or how to write her name or even her first initial. She then developed
self-esteem issues, which led to behavioral problems at school, like scribbling
on another student’s paper, hitting and pushing on the playground, and having
difficulty following instructions. The foster parents worked with her, enrolled
21
her in a social skills class at her school, and took her to church twice a week
to give her more time to be with children her age.
When R.H.D.G. first moved into the foster home, he had a negative view
of police officers and talked about smoking pot, doing drugs, and drinking beer,
both generally and as something he was going to do. Stephanie echoed the
therapist’s testimony about R.H.D.G.’s sexual acting out in pre-K.
Stephanie testified that the children’s behaviors improved over time, that
they thrived on routine, that they became much more secure and confident, and
that they went from getting used to sleeping in their own beds to being able to
sleep with the door shut.
When the children were returned to Stephanie after the second removal,
the biggest thing she noticed was fear. R.H.D.G. was apprehensive about the
bedroom door being shut at night and was defensive and aggressive. Stephanie
testified that it took about two weeks for him to be “okay again.” She also
testified, however, that more sexual acting out occurred after his return.
E.M.B. had gone from being able to sleep with a dim nightlight to needing a
lamp that illuminated the whole room. She also had some daytime urination
accidents.
When E.M.B. was returned to Stephanie’s home, she told her foster
mother, “We’re here because of [C.S.H.], but I can’t talk about it. My mom
22
and my nana said I can’t talk about it because it’s all taken care of.” After her
CPS interview, E.M.B. told the foster parents and R.H.D.G. that “[C.S.H.] had
touched her private parts and that that’s why . . . she told the truth.” She also
told them that it happened and that she reported it to Mother before the twins
were returned home.
J.G.G., who had been a very outgoing, happy toddler who loved water
and taking baths, was withdrawn and quiet and “really just fell apart and did
not want to get in the bathtub” when Stephanie tried to give him a bath after
the second removal. After a few days, though, he started singing again.
Stephanie testified that the children had been with her and her husband
a total of eighteen months, that she and her husband love the children, that the
children appear to love her and her husband and tell them so everyday, and that
they’re all very close. They have bonded and have a very strong relationship.
But she also admitted that E.M.B. has told her before that she wants to go back
to Mother.
Stephanie also testified that the children know the foster parents’
extended family and friends. She stated that she and her husband would like
to adopt the children if they become available and that she would be committed
to keeping the children in contact with the twins, who are with other foster
23
parents, including having overnight visits. She also testified that the children
had visited with the twins three times since the second removal.
Stephanie stated that the children love Mother, that she believed that
Mother showed them love and affection, that she would be willing for the
children to have a relationship with Mother if possible, and that she had helped
the older two children write letters to Mother expressing that they loved and
missed her.
Greta testified that she is the foster mother of the twins, that the first
thing she noticed when they arrived on February 2, 2008, between 12:00 and
1:00 a.m. was their wheezing, that she later learned that they had bronchitis
as a result of having RSV in January, and that even though they were seven
and a half months old when they arrived, C.H. could sit up for only a short
time, M.H. could not sit up at all, and neither baby was rolling over. The babies
also had solid food issues. Greta worked with them on their milestones and
also set up Early Childhood Intervention (ECI) visits. At the time of trial, ECI
was no longer needed. The twins, who slept sporadically when they first
arrived, were sleeping through the night at the time of trial and eating on a
regular schedule.
24
Greta testified that she and her family are bonded to the twins, that the
twins seem bonded to them, and that if Mother’s rights were terminated, she
and her husband would like to adopt them.
In her first four points, Mother challenges the legal and factual sufficiency
of the endangerment findings under subsections (D) and (E). As we have
explained in a similar case,
Endangerment means to expose to loss or injury, to
jeopardize. The trial court may order termination of the parent-child
relationship if it finds by clear and convincing evidence that the
parent has knowingly placed or knowingly allowed the child to
remain in conditions or surroundings that endanger the physical or
emotional well-being of the child. 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.
Conduct of a parent in the home can create an environment that
endangers the physical and emotional well-being of a child.
. . . . Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s physical or
emotional well-being was the direct result of the parent’s conduct,
including acts, omissions, and failures to act. Termination under
subsection (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.
To support a finding of endangerment, the parent’s conduct
does not necessarily have to be directed at the child, and the child
is not required to suffer injury. The specific danger to the child’s
well-being may be inferred from parental misconduct alone, and to
determine whether termination is necessary, courts may look to
parental conduct both before and after the child’s birth. . . . A
parent’s decision to engage in illegal drug use during the pendency
25
of a termination suit, when the parent is at risk of losing a child,
supports a finding that the parent engaged in conduct that
endangered the child’s physical or emotional well-being. Thus,
parental and caregiver illegal drug use supports the conclusion that
the children’s surroundings endanger their physical or emotional
well-being. A factfinder may also reasonably infer from a parent’s
failure to attend scheduled drug screenings that the parent was
avoiding testing because the parent was using drugs. 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.
Because the evidence pertaining to subsections
161.001(1)(D) and (E) is interrelated, we conduct a consolidated
review.6
Applying the appropriate standard of review,7 we hold that, based upon
our review of the record, the evidence is legally sufficient to support the trial
court’s endangerment findings regarding Mother under subsections (D) and (E).
Also applying the appropriate standard of review,8 we hold that the evidence
is factually sufficient to support those findings. We overrule Mother’s first four
points. We do not reach her fifth and sixth points.9
6
… In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4–5 (Tex.
App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted).
7
… See In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005).
8
… See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002).
9
… See Tex. R. App. P. 47.1; In re E.M.N., 221 S.W.3d 815, 821 (Tex.
App.—Fort Worth 2007, no pet.) (providing that along with a best interest
finding, a finding of only one ground alleged under section 161.001(1) is
sufficient to support a judgment of termination).
26
In her two final points, Mother contends that the evidence is legally and
factually insufficient to support the best interest finding. Applying the
appropriate standard of review,10 we hold that, based upon our review of the
record, the evidence is legally sufficient to support the best interest finding.
We also hold, applying the appropriate standard of review,11 that the evidence
is factually sufficient to support the best interest finding. We overrule Mother’s
seventh and eighth points.
Having overruled Mother’s dispositive points, we affirm the trial court’s
final orders terminating her parental rights.
PER CURIAM
PANEL: DAUPHINOT, J.; CAYCE, C.J.; and LIVINGSTON, J.
DELIVERED: September 17, 2009
10
… See Tex. Fam. Code Ann. § 263.307(a), (b) (Vernon 2008); In re
R.R., 209 S.W .3d 112, 116 (Tex. 2006); J.P.B., 180 S.W.3d at 573–74;
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
11
… See Tex. Fam. Code Ann. § 263.307(a), (b); R.R., 209 S.W.3d at
116; H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d
at 371–72.
27