Johnette Langford and Joseph Langford v. Texas Department of Protective and Regulatory Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00377-CV

Johnette Langford and Joseph Langford, Appellants

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 98-01808, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

This is a parental termination case. Johnette and Joseph Langford, appellants, have two children, T.L. and J.L. Johnette has two other children, R.P. and K.P., whose father is Reginald Parker. All four children were the subject of the termination proceeding. At the time of the termination hearing, R.P. was 13, K.P. was 11, T.L. was 6, and J.L. was 3. Following two bench trials,⁽¹⁾ the trial court found that Johnette's conduct violated Texas Family Code section 161.001(D) and (E) (West Supp. 2000), and that Joseph's conduct violated Texas Family Code section 161.001(D), (E), (F) and (N) (West Supp. 2000). The trial court further found that termination was in the best interest of K.P., T.L., and J.L.

The trial court appointed the Texas Department of Protective and Regulatory Services ("Department") as the managing conservator of R.P. and appointed Johnette her possessory conservator. The trial court terminated Parker's parental rights to K.P. but reserved ruling on his rights as to R.P. until a later time. Parker did not appeal the termination of his parental rights. The trial court terminated Joseph's rights to his two children and Johnette's parental rights to K.P., T.L. and J.L. Both Joseph and Johnette appeal the trial court's decree. We will affirm.

JOHNETTE LANGFORD

Discussion

Failure to Conduct a Pre-trial or Bifurcated Trial on Issue of ADA Compliance

Johnette argues in her first issue that the trial court abused its discretion by failing to bifurcate the issue of the Department's compliance with the Americans with Disabilities Act ("ADA") from the issue of parental termination. She contends that she has a mental illness entitling her to the protections afforded by the ADA. She contends that failing to first consider the ADA compliance issue will prejudice a mentally challenged parent. According to Johnette's argument, if the trial court determines a parent is mentally ill and disabled within the ADA, the trial court will likely decide termination is in the best interest of the child. She further argues that if the Department has not properly accommodated a parent's mental disability, the trial court cannot make an informed decision on the best interest of the child. Although the Department argues that the ADA does not apply to termination proceedings, for purposes of this opinion only, we will assume that the ADA applies.

Texas Rule of Civil Procedure 174(b) provides that, in furtherance of convenience or to avoid prejudice, a trial court may order a separate trial of any claim. Tex. R. Civ. P. 174(b). The decision to bifurcate or not is within the sound discretion of the trial court. Johnson v. State Farm Mut. Auto. Ins., 762 S.W.2d 267, 269 (Tex. App.--San Antonio 1988, writ denied).

Johnette points to no statutory authority and we have found none requiring a trial court to bifurcate the issue of ADA compliance from parental termination. Nothing in the record suggests that the trial court was unable to fairly resolve the issue of parental termination in light of Johnette's allegation that the Department did not comply with the ADA. The trial court heard evidence of the Department's regulations for complying with the ADA and also heard evidence of the Department's efforts with Johnette.

We disagree with Johnette's argument that failing to bifurcate the trial will necessarily prejudice a mentally challenged parent and prevent the trial court from making an informed decision regarding the best interest of the child. Mental illness or mental incompetence alone is not a ground for parental termination. Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140, 141-42 (Tex. Civ. App.--Dallas 1975, no writ). Among the factors a trial court considers when determining the best interest of the child is the parental ability of the individual seeking custody and the stability of the home of the proposed parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Spurlock v. Texas Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 158 (Tex. App.--Austin 1995, writ denied). Thus, Johnette's ability to care for her children in light of her mental condition is subsumed in the trial court's determination of the best interest of the child and is a matter the fact finder must consider. The trial court cannot separate these issues as suggested by Johnette. We conclude that the trial court did not abuse its discretion by refusing to bifurcate the issue of ADA compliance from termination. We overrule Johnette's first issue.

Department's Accommodation of Johnette's Condition

In her second issue, Johnette argues that the Department failed to accommodate her disability as required by the ADA. She argues that the Department failed to provide services which were specially designed for someone with a mental illness. Because of this failure, Johnette contends that the issue of termination was decided prematurely.

Johnette's complaints relate to the Department's attempts at family reunification. The trial court found that the Department made reasonable efforts, consistent with the time and the circumstances of the case, to reunite the children with the family. Although section 161.001 does not require reasonable efforts to be made by the Department in attempting to reunify the family before termination is appropriate, Edwards v. Texas Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 139 (Tex. App.--El Paso 1997, no writ), it is presumed that the best interest of the child will be served by preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). Thus, the requirement to show that the termination is in the best interest of the child in addition to the clear and convincing standard of proof subsumes the reunification issues and guarantees the constitutionality of termination proceedings. Edwards, 946 S.W.2d at 139. A separate consideration of alternatives to termination is not required. Navarrette v. Texas Dep't of Human Res., 669 S.W.2d 849, 852 (Tex. App.--El Paso 1984, no writ). Even if the Department has a policy of providing reunification services, it "does not modify the requirements of the Texas Family Code nor create a condition precedent to the involuntary termination of parental rights." Jones v. Dallas County Child Welfare Unit, 761 S.W.2d 103, 109 (Tex. App.--Dallas 1988, writ denied).

Johnette's initial contact with the Department was in 1989. Her children were first removed from her care by the Department in 1993. Although the Department has offered or provided many services to assist her in improving her parental skills or in assisting her with her mental problems, Johnette has been resistant to the proposed family plans, failed to attend scheduled meetings, failed to take her medication as prescribed, continued to be involved with abusive men, and continued to take illegal drugs.

Johnette's mental condition has been diagnosed as bi-polar, post-traumatic stress disorder ("PTSD") or cocaine-induced mood disorder. Dr. Shero, a physician and psychologist with the Austin Travis County Mental Health Mental Retardation Center ("MHMR"), who treated Johnette for over a year, opined that Johnette's cocaine use was the cause of her behavioral problems. Although Dr. Shero encouraged Johnette to obtain drug counseling, Johnette did not. According to Dr. Shero, Johnette was not sincere in pursuing her treatment. Dr. Shero testified that Johnette was offered "everything there was to offer" but continued to go back to drugs. Dr. Shero eventually closed her file on Johnette because of lack of compliance with treatment. According to the Department caseworker, Johnette was not compliant with the terms of her family service plan, failing to attend scheduled counseling appointments and group therapy sessions. The caseworker further testified that there was no indication that Johnette was modifying her habits as a result of the therapy.

We conclude that the evidence supports the trial court's finding that the Department accommodated Johnette consistent with her mental condition. We overrule issue two.

Sufficiency of the Evidence in Support of Termination

In her third issue, Johnette challenges the factual sufficiency of the evidence in support of the termination of her parental rights. In determining parental termination, the Department must demonstrate parental conduct which has been defined by statute to constitute grounds for termination, and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2000); Vargas v. Texas Dep't of Protective & Regulatory Servs., 973 S.W.2d 423, 426 (Tex. App.--Austin 1998, pet. granted w.r.m.). In this case, the Department sought termination based on Johnette's conduct which endangered the physical or emotional well-being of the children. See Tex. Fam. Code Ann. § 161.001(D), (E).

Custodial rights of parents come within the protection of the due process clauses of the federal and state constitutions. Rodarte v. Cox, 828 S.W.2d 65, 80 (Tex. App.--Tyler 1991, writ denied); Pettit v. Engelking, 260 S.W.2d 613, 616 (Tex. Civ. App.--San Antonio 1953, writ ref'd n.r.e.). Grounds for termination must be proved by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001, 161.206(a) (West 1996 & Supp. 2000). Clear and convincing evidence is defined as the degree of proof which will produce in the fact finder's mind a firm belief or conviction as to the truth of the allegations sought to be established. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). The clear and convincing standard applied in parental termination cases requires more proof than a preponderance of the evidence in civil cases but less than the reasonable doubt standard applied in criminal cases. Djeto v. Texas Dep't of Protective & Regulatory Servs., 928 S.W.2d 96, 97 (Tex. App.--San Antonio 1996, no writ).

In reviewing the factual sufficiency of the evidence, the court must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Spurlock, 904 S.W.2d at 155. The clear and convincing standard of proof does not alter the appropriate standard of appellate review. Spurlock, 904 S.W.2d at 155-56; D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ).

Conduct Sufficient to Justify Termination

Johnette has had a long history with the Department⁽²⁾ beginning in 1989. In March 1989, Johnette contacted the Department and claimed she could not care for her two children and wanted the Department to take them. In April 1989, Johnette again contacted the Department seeking placement of her children in foster care because she was trying to get herself admitted to the Austin State Hospital. After both referrals, the Department determined that there were relatives available to assist her with the children. The next referral to the Department came in June 1989 from an anonymous caller saying Johnette was leaving her children alone. The Department's investigation could not substantiate that the children were unsupervised. In September 1989, Johnette threatened to commit suicide and the children were placed with Parker. In November 1989, Psychiatric Emergency Services made a referral to the Department regarding alleged sexual abuse of R.P. by Parker. The Department's investigation did not reveal evidence of sexual abuse. In December 1989, the police department referred Johnette because she attempted to commit suicide by a drug overdose. The Department placed the children with their grandmother.

In April 1990, Brackenridge Hospital made a referral when Johnette was examined after being sexually assaulted and informed hospital personnel that her children were home alone. The police took the children to their grandmother. In July 1990, a negligent supervision referral contended the children were not properly supervised and were left alone at night. In December 1990, another negligent supervision referral from the police department was made after they responded to a 911 call.

In 1993, while Johnette and the children were living at the Salvation Army in Dallas, the Department received a referral that Johnette was leaving the children unattended at the shelter and that she was acting out of control. Johnette was admitted to the Parkland Psychiatric Unit with a diagnosis of bi-polar disorder mania and in a state of hypomania. T.L. was taken by her paternal grandmother; K.P. and R.P. were placed in a foster home. After Johnette moved to Austin, the Department transferred the case to Austin in September 1993. In late 1993 to early 1994, the children lived first with an aunt and then with Parker's mother. In March 1994, the children moved back in with Johnette. In March and September 1994, Johnette entered family service plans through the Department.

The record indicates that Johnette's lifestyle endangered the well-being of the children. She has a history of cocaine use and emotional instability. Johnette admitted that her drug use adversely affected her parental abilities. In January 1998, Johnette again threatened to commit suicide and relapsed into cocaine use. Although there was evidence Johnette had been off drugs for the two months preceding the hearing on termination, Dr. Shero opined that this was not enough time to conclude she would continue to remain drug free. Illegal drug use will support a finding of termination under section 161.001(1)(D) and (E). See Trevino v. Texas Dep't of Protective & Regulatory Servs., 893 S.W.2d 243, 251 (Tex. App.--Austin 1995, no writ) (evidence of criminal conviction, imprisonment, violent temper, inability to hold a job, illegal drug use and drug dealing and inferences drawn therefrom support termination). Johnette attempted suicide while her children were in her care and was repeatedly admitted to psychiatric hospitals for her mental problems.

Johnette also had difficulties controlling her children. When K.P. was six years old and in Johnette's care, she twice attempted to commit suicide by hanging herself. In September 1997, R.P. began having behavioral problems. Johnette called the police and reported R.P. twice for fighting with her other children. R.P. injured T.L. and K.P., and on another occasion attempted to stab Johnette with scissors. R.P. was placed in the Department's care and eventually placed in a residential treatment center in March 1998. Johnette was not able to keep her school-aged children in school on a regular basis. Dr. Shero testified that Johnette's attitude toward her children varied from wanting them in her life to considering them a burden. However, when the State attempted to remove the children in the spring of 1998, Johnette and Joseph conspired to abscond with T.L. and J.L. Because they were unable to remove K.P. from school, they left her and she was placed in an emergency shelter. In June 1998, T.L. and J.L. were returned to Austin and placed with K.P. in a foster home.

Johnette had also been in abusive relationships with the children's fathers. Joseph abused Johnette and the children, resulting in the entry of two protective orders against him. While chasing Johnette through the house during a fight, Joseph injured R.P., K.P. and J.L. Johnette also sought a protective order against Parker for abuse; however, the charges were dropped when she refused to cooperate with the county attorney's office. In the year before the termination hearings, Johnette had a relationship with another man who had a history of violence and who abused her. Evidence of violence or negligent conduct directed toward the other parent or other children, even if not committed in the child's presence, may support a finding of endangerment under section 161.001(1)(E). In re B.R., 950 S.W.2d 113, 119 (Tex. App.--El Paso 1997, no writ). Johnette testified that she was no longer involved with Joseph. However, the Department introduced Johnette's key chain, which she had in her possession at the time of the termination hearing, containing a picture of Joseph and herself. Johnette testified the picture was taken in December 1998.⁽³⁾

There was evidence that Johnette left the children alone at night. Johnette defended her conduct on the ground that none of the children were harmed on these occasions. The Department also presented evidence that Johnette and Joseph engaged in sexual relations in front of T.L. A child does not have to suffer an actual injury; it is enough that the child's well-being is jeopardized or exposed to loss or injury. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269-70 (Tex. 1996) (mother endangered children by leaving them alone).

We conclude the evidence is factually sufficient to support the trial court's findings that Johnette knowingly placed and knowingly allowed the children to remain in conditions and surroundings which endangered their physical and emotional well-being. See Tex. Fam. Code Ann. § 161.001 (D), (E).

Best Interest of the Children

Having concluded that Johnette engaged in conduct sufficient to warrant termination, the trial court was then required to decide if termination was in the best interest of the children. Tex. Fam. Code Ann. § 161.001(2) (West Supp. 2000). Factors to consider in deciding the best interest of the child include: (1) the emotional and physical needs of the child now and in the future; (2) the parental abilities of the parent seeking custody; (3) the programs available to assist the parent seeking custody; (4) the plans for the child by the parent or agency seeking custody; (5) the stability of the home or the proposed placement; and (6) any acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one. Holley, 544 S.W.2d at 371-72; Spurlock, 904 S.W.2d at 158.

At the time of the termination hearing, R.P. was living in a residential treatment center ("RTC").⁽⁴⁾ Dr. Carter, R.P.'s attending clinical psychologist at the RTC, testified that she has had several psychiatric hospitalizations because of aggression and self-harm. While in his care, R.P. has had to be physically and chemically restrained. He reported that she is angry, depressed and has eating problems. R.P. has been diagnosed as potentially bi-polar. She takes medications to control her aggressive behavior. Dr. Carter opined that she will likely need psychiatric care throughout her life. The case worker reported that R.P. needs residential care for the next six to twelve months to stabilize; then she could be moved to a less restrictive RTC and then to a therapeutic foster home. She testified that R.P.'s problems would make her difficult to adopt. The Department believed that allowing R.P. and Johnette to remain in contact would be helpful for R.P. Dr. Adair testified that it would be difficult for any parent to care for R.P.

K.P., T.L. and J.L. resided at the same foster home at the time of the termination hearings. Dr. Emilie Becker examined them in 1998. She testified that K.P. was depressed and had mood problems and diagnosed her as being manic depressive. According to the Department caseworker, K.P. would rather live in jail with her father, Parker, than with Johnette. Dr. Becker testified that T.L. showed signs of abuse and some anxiety symptoms. T.L. reported suicidal thoughts and showed a preoccupation with violence. The Department case worker reported that T.L. described seeing Johnette and Joseph engaging in sexual relations. According to the caseworker, T.L. described Johnette's home as a war zone.

Dr. Becker reported that J.L. was destructive and unable to settle down or calm down, and that he was angry and aggressive. Dr. Becker opined that J.L. was reacting either to abuse or was showing signs of early childhood manic depressive disorder. According to Dr. Becker, the children need a stable environment with no exposure to abuse. She further opined that they need therapy and possibly medication to help them manage.

According to the children's foster mother, K.P. initially was withdrawn and would not interact with the rest of her foster family. After being with the foster family for a few months, K.P. was interacting well with others and was bonding with her foster parents. The foster mother testified that J.L. was self-abusive and very angry and did not accept authority from females when he first arrived at the foster home. He used profanity and had eating and sleeping problems. He fought with the other children in the home. She testified that he has improved while in the foster home and has bonded with his foster parents. According to the foster mother, T.L. fought with the other children and talked inappropriately about sexual activity. After being in the foster home for several months, T.L. has improved and is doing well in school. She has bonded with her foster parents.

The record indicates that Johnette was unable to provide a stable, safe and non-abusive environment for her children. Johnette refused the help offered by the Department. She declined to participate in Parents' Anonymous in 1994 because it was for parents who abused their children. She also did not want to participate in a protective parenting class after her children were removed in 1998 because she did not acknowledge the allegations against her. Dr. Adair, who examined Johnette at the request of her attorney, diagnosed Johnette with PTSD and recommended that Johnette "not have all of her kids right now." Johnette has shown over the years an inability to care for her children. According to the evidence and inferences therefrom, the children all show signs of being in an unstable and abusive environment. The three younger children are improving in the foster home. We conclude that the evidence is factually sufficient to support the trial court's finding that termination is in the best interest of K.P., T.L. and J.L., and that it is in R.P.'s best interest that the Department be named her managing conservator. We overrule Johnette's third issue.

JOSEPH LANGFORD

The trial court found that Joseph's conduct endangered the emotional and physical well-being of the children; that he constructively abandoned the children; that he failed to support the children in accordance with his ability; and that termination was in the best interest of the children. Joseph challenges the legal and factual sufficiency of the evidence to support these findings.

In reviewing a legal sufficiency challenge, we consider only the evidence and inferences which tend to support the trial court's findings and disregard all evidence and inferences to the contrary. Edwards, 946 S.W.2d at 137. In reviewing the factual sufficiency of the evidence, the court must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; Spurlock, 904 S.W.2d at 155.⁽⁵⁾

As stated, the Department has the burden of proving the grounds for termination by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001. 161.206(a) (West 1996 & Supp. 2000).

Endangerment of the Physical and Emotional Well-Being of the Children

Through his many years of involvement with Johnette and the children, Joseph's conduct demonstrated a pattern of behavior that endangered his children. In 1993, Joseph allowed Johnette and the children to stay in the Salvation Army while he stayed with his mother. When Johnette was then admitted to Parkland Hospital, R.P. and K.P. were taken by the Department and T.L. was taken to Joseph's mother. Joseph was aware of Johnette's drug use, but allowed T.L. and J.L. to remain in her care. Despite her drug use, Joseph did not think Johnette would be a danger to the children. Joseph testified that he did not believe Johnette had a mental illness, even though he was aware of the medications she took and her hospitalizations. Joseph did not maintain steady employment and gambled frequently to support the family.

Joseph physically abused Johnette and had two protective orders entered against him prohibiting contact with Johnette and the children. He disobeyed both protective orders and continued to see Johnette and the children. In front of the children, Joseph chased Johnette upstairs and straddled her on the bed. R.P. and K.P. were yelling at Joseph to leave her alone when he chased the girls down the stairs. Johnette stated in her affidavit in support of the protective order that Joseph gave K.P. a black eye, hit and twisted R.P.'s arm and stepped on J.L. For the incident involving R.P. and K.P., Joseph was convicted of recklessly causing bodily injury to a child. Johnette testified that Joseph hit her in the stomach when she was pregnant and that he forced her to have sex against her will. Joseph denied these accusations and maintained that he did not injure the children. Evidence of violence or negligent conduct directed at the other parent or child, even if not committed in the child's presence, will support a finding of endangerment under section 161.001(1)(E). In re B.R., 950 S.W.2d at 119.

When the Department attempted to take possession of T.L. and J.L. in 1998, Joseph absconded with the children and eventually took them to Arkansas. The Department retrieved the children in Arkansas and returned them to Austin. Joseph did not see his children after they were taken in July 1998 and he did not contact the Department to schedule visitation. Joseph testified that he did not contact the Department for fear that he would be arrested for violation of his probation.

According to his probation officer, Joseph missed many of his scheduled appointments and failed to obtain stable employment and maintain a stable residence. Joseph also did not attend an alcohol education class as required by his probation. When Johnette and Joseph divorced, Joseph was ordered to pay monthly support. He admitted to his probation officer that he was behind in support payments and had not been making payments through the Domestic Relations Office. Joseph testified that he gave Johnette money and provided food for the family. He did not provide proof of the amounts he allegedly paid. Johnette testified that he did not consistently provide support for the family and often gambled with money they needed for rent and food. Joseph testified that "the State was being a better dad than I could have been." Joseph eventually stopped all contact with his probation officer.

Joseph's disregard of court orders and the terms of his probation, and his violence and abuse of Johnette and the children provide legally and factually sufficient evidence to support the trial court's finding of conduct endangering the physical and emotional well-being of the children. We overrule issues one and two.

Constructive Abandonment

In his fourth issue, Joseph challenges the sufficiency of the evidence to support the trial court's finding of constructive abandonment. Section 161.001(N) provides that a parent constructively abandons a child if the child is in the permanent or temporary managing conservatorship of the Department for not less than six months, and (1) the Department or authorized agency has made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained significant contact with the child; and (3) the parent has demonstrated an inability to provide the child with a safe environment. Tex. Fam. Code Ann. § 161.001(1)(N) (West Supp. 2000).

The Department was the managing conservator of the children for more than six months, from July 1998 through the June 1999 termination hearing. The Department attempted to locate Joseph in the spring of 1998 through utility and telephone records and through Johnette. The Department did not know where Joseph was residing from May 1998 through March 1999. Joseph testified that he tried to "stay as invisible from authorities as possible." Joseph did not contact the Department or attempt to visit his children after they were taken by the Department in July 1998. The evidence discussed under issues one and two indicates Joseph's inability to provide a safe environment for his children. We conclude the evidence is legally and factually sufficient to support the trial court's finding of constructive abandonment.

Failure to Support the Children

In his third issue, Joseph challenges the sufficiency of the evidence to support the trial court's finding that he failed to support his children as a ground for termination. The Department had the burden of proving that Joseph failed to support his children in accordance with his ability during a one-year period ending within six months of the date of the filing of the petition. Tex. Fam. Code Ann. § 161.001(F) (West Supp. 2000). The ability to pay support must exist each month during the twelve-month period. In re Z.W.C., 856 S.W.2d 281, 283 (Tex. App.--Fort Worth 1993, no writ). The question of Joseph's inability to support his children as a ground for termination of his parental rights presents a much closer question than the other grounds alleged by the Department. However, given our holding that the evidence is legally and factually sufficient to support termination based on endangerment and abandonment, we need not address the issue of his failure to support T.L. and J.L. See In re B.B., 971 S.W.2d 160, 163 (Tex. App.--Beaumont 1998, pet. denied) (only one of pleaded grounds for termination must be upheld to affirm trial court decision).

Best Interest of the Children

Joseph challenges the sufficiency of the evidence to support the trial court's finding regarding the best interest of the children in his fifth issue. The Department caseworker testified that T.L. and J.L. are currently in therapy and will need ongoing psychotherapy due to their behavioral problems. She testified that J.L.'s problems when he arrived at the foster home were related to his environment with the Langfords. He was unable to eat with a spoon and ate only with his hands. His verbal skills were weak and he was overly aggressive. T.L. exhibited an unusual interest in sexual matters, had aggressive tendencies, was non-compliant with the foster home rules and schedule, and was argumentative with the other children in the home. According to the caseworker, T.L. was acting the way she did when living with Johnette. She testified that placing the children with Joseph would endanger their emotional and physical needs. She believed that if Joseph had possession of the children he would continue to see Johnette, which would be dangerous for the children.

Although Joseph stated that he would stay away from Johnette if his parental rights were not terminated, his past conduct in violating two protective orders which ordered him to avoid contact with Johnette does not support his testimony. Joseph did not provide his children with a safe environment. He subjected his children to abuse and to a parent who had mental problems and a drug addiction problem. We conclude that the evidence is both legally and factually sufficient to support the trial court's finding that termination is in the best interest of the children. We overrule Joseph's fifth issue.

Conclusion

Having overruled all of Johnette's and Joseph's issues, we affirm in all respects the trial court decree 1) terminating the parental rights of Joseph to T.L. and J.L., 2) terminating Johnette's parental rights to K.P., T.L. and J.L., 3) appointing the Department the permanent managing conservator of R.P., and 4) appointing Johnette the permanent possessory conservator of R.P.

Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: March 30, 2000

Do Not Publish

1. Johnette's and Parker's parental rights were determined in one hearing; Joseph's parental rights were determined in another hearing.

As of September 1, 1991, all functions, programs and activities related to the child protective services program, including adoption and foster care, were transferred from the Department of Human Services to the Department of Protective and Regulatory Services. Act of August 9, 1991, 72d Leg., 1st C.S., ch. 15, art. 1, § 1.06(a), 1991 Tex. Gen. Laws 281, 295. For convenience, we refer to both entities as the "Department."

Johnette's termination hearing occurred in February 1999.

Dr. Carter testified that a residential treatment center is a center for young people who are severely disturbed and not stable enough for a home environment, yet who are not in need of hospital care.

Joseph argues the clear and convincing evidentiary standard warrants a higher standard of review on appeal. He contends the review on appeal should be whether the fact finder could reasonably conclude the existence of a fact is highly probable; that is, whether the fact finder has a firm belief or conviction regarding the truth of the allegations sought to be established. Edward, 946 S.W.2d at 137. Because we conclude that the evidence in this case is factually sufficient under either standard, we will not alter our prior holding on this issue. See Spurlock, 904 S.W.2d at 155-56; D.O., 851 S.W.2d at 353 (the clear and convincing standard of proof does not alter the appropriate standard of review).

oseph challenges the sufficiency of the evidence to support the trial court's finding regarding the best interest of the children in his fifth issue. The Department caseworker testified that T.L. and J.L. are currently in therapy and will need ongoing psychotherapy due to their behavioral problems. She testified that J.L.'s problems when he arrived at the foster home were related to his environment with the Langfords. He was unable to eat with a spoon and ate only with his hands. His verbal skills were weak and he was overly aggressive. T.L. exhibited an unusual interest in sexual matters, had aggressive tendencies, was non-compliant with the foster home rules and schedule, and was argumentative with the other children in the home. According to the caseworker, T.L. was acting the way she did when living with Johnette. She testified that placing the children with Joseph would endanger their emotional and physical needs. She believed that if Joseph had possession of the children he would continue to see Johnette, which would be dangerous for the children.