in the Interest of D.R.J., a Child

NO. 07-08-0410-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 8, 2009

______________________________

IN THE INTEREST OF D.R.J., A CHILD

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF RANDALL COUNTY;

NO. 5475-L1; HONORABLE JAMES W. ANDERSON, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, T.W.,1 appeals the trial court’s order terminating her parental rights to her

son, D.R.J.2 Presenting two issues, she maintains (1) the evidence is legally and factually

insufficient to support the grounds for termination and (2) the best interests of D.R.J. are

not served by terminating her relationship with him. We affirm.

1
To protect the parents’ and child’s privacy, we refer to the parents and the child by their initials. See
Tex. Fam . Code Ann. § 109.002(d) (Vernon 2002). See also Tex. R. App. P. 9.8(b).

2
D.R.J.’s biological father, D.J., voluntarily relinquished his parental rights and is not a party to this
appeal.
 Background

In 2004, when T.W. was eighteen years old, she and her paramour, D.J., began a

romantic relationship. Shortly thereafter, T.W. became pregnant with D.R.J. and D.J. left

her to live with another woman and her child. T.W. and D.J. later reconciled and had an

on-again off-again relationship for approximately three years. During the relationship, T.W.

was employed; D.J. did not work nor provide for his family, abused and sold drugs, and

associated with drug dealers. T.W. claimed that D.J. hit and pushed her on several

occasions, and she once observed a handprint on D.R.J.’s face while he was under D.J.’s

sole care.

In 2006, T.W. gave birth to a daughter, Q.M.J. T.W. testified that around Christmas

of that year, D.J. was physically abusive to her and she left him. She later reconciled with

him believing, naively, he had changed. She had a desire to keep her family together

because her own father had not been a part of her life.

On April 10, 2007, when Q.M.J. was less than six months old, T.W. was at work and

D.J. was the sole caregiver for the children. D.J. took Q.M.J. to the emergency room in

respiratory arrest claiming she had choked while drinking from her bottle. Q.M.J. was

examined by an emergency room doctor who diagnosed her with traumatic brain injury and

vaginal trauma. Q.M.J. was resuscitated and referred to Dr. Eric Levy, a pediatric intensive

care doctor. She was also examined by a sexual assault nurse because her injuries were

2
not consistent with the history given by D.J. As a result of the injuries, Q.M.J. died the

following day.3 Dr. Levy described her death as violent, horrific, painful, and traumatic.

After Q.M.J. was admitted to the hospital, T.W. gave law enforcement a statement.

According to Officer Eric Smith, on April 10, 2007, T.W. acknowledged that D.J. was the

sole caregiver of the children while she worked. She denied that D.J. was abusive or used

drugs. The next day, T.W. gave another statement to the police adding that D.J. sold

cocaine, but did not use it. She continued to deny any abuse towards herself or her

children. She also stated that D.J. did not have any sexual perversions. Prior to giving her

third statement on April 16, 2007, Officer Smith spoke with T.W. and she admitted that

domestic violence had occurred and she had seen a handprint on D.R.J.’s face while he

was in D.J.’s sole care. She claimed that D.J. would get upset when D.R.J. cried.

As a result of Q.M.J.’s death, the Texas Department of Family and Protective

Services removed D.R.J. from his home and filed its petition seeking to be named

temporary sole managing conservator of D.R.J. and ultimately, termination of T.W. and

D.J.’s parental rights. Initially, the Department’s goal was family reunification; however, the

goal later changed to alternative family placement, i.e., adoption. D.J. signed an affidavit

of voluntary relinquishment of his parental rights and the termination suit proceeded

against T.W. The Department sought termination against T.W. for one or more of the

following acts or omissions:

3
At the tim e of the final hearing, D.J. was awaiting trial on capital m urder charges for Q.M.J.’s death.

3
 (1) knowingly placing or knowingly allowing the child to remain in conditions
or surroundings which endangered the physical or emotional well-being of
the child;
(2) engaging in conduct or knowingly placing the child with persons who
engaged in conduct which endangered the physical or emotional well-being
of the child.

See Tex. Fam. Code Ann. § 161.001(1)(D) and (E) (Vernon 2008).4

At the final hearing, the Department presented testimony from thirteen witnesses,

including T.W. The trial court then ordered termination of T.W.’s parental rights. The trial

court further ordered that T.W. have limited access to and possession of D.R.J. in the form

of supervised visitation. After numerous home studies, D.R.J. was eventually placed with

his maternal great uncle who wishes to adopt him. The uncle is not opposed to T.W.

having contact with D.R.J.

Termination of Parental Rights

The natural right existing between parents and their children is of constitutional

dimension. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). See also Santosky v.

Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Consequently,

termination proceedings must be strictly scrutinized. In the Interest of G.M., 596 S.W.2d

846, 846 (Tex. 1980). Parental rights, however, are not absolute, and it is essential that

4
All references herein are to the Texas Fam ily Code unless otherwise designated.

4
the emotional and physical interests of the child not be sacrificed merely to preserve those

rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

A termination decree is complete, final, irrevocable, and divests for all time that

natural right as well as all legal rights, privileges, duties, and powers with respect to each

other except for the child’s right to inherit. Holick, 685 S.W.2d at 20. Thus, due process

requires application of the clear and convincing standard of proof in cases involving

involuntary termination of parental rights. In the Interest of J.F.C., A.B.C., and M.B.C., 96

S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is that measure or degree

of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established. See § 101.007. See also In the Interest

of G.M., 596 S.W.2d at 847; In the Interest of Z.J., 153 S.W.3d 535, 539

(Tex.App.–Amarillo 2004, no pet.).

The Family Code permits a court to order termination of parental rights if the

petitioner establishes one or more acts or omissions enumerated under subsection (1) of

the statute and also proves that termination of the parent-child relationship is in the best

interest of the child. See § 161.001; Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

Though the same evidence may be probative of both issues, both elements must be

established and proof of one element does not relieve the petitioner of the burden of

proving the other. See Holley, 544 S.W.2d at 370; In re C.H., 89 S.W.3d at 28.

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 Termination of Parental Rights Under § 161.001(1)(D) & (E)

Under section 161.001(1)(D), parental rights may be terminated when clear and

convincing evidence shows that a parent knowingly placed or knowingly allowed her child

to remain in conditions or surroundings that endanger the physical or emotional well-being

of the child. Although the focus of subsection (D) is on the child’s living environment and

not on the parent’s conduct, parental conduct may produce an endangering “environment.”

See In re D.T., 34 S.W.3d 625, 633 (Tex.App.–Fort Worth 2000, pet. denied). See also

Matter of B.R., 822 S.W.2d 103, 105-06 (Tex.App.–Tyler 1991, writ denied)5 (citing In the

Interest of L.S., P.P., G.S., and M.S., 748 S.W.2d 571 (Tex.App.–Amarillo 1988, no writ).

Additionally, subsection (D) permits termination based on a single act or omission by the

parent. In re L.C., 145 S.W.3d 790, 796 (Tex.App.–Texarkana 2004, no pet.).

Under section 161.001(1)(E), parental rights may be terminated if clear and

convincing evidence shows that a parent engaged in conduct or knowingly placed her child

with persons who engaged in conduct that endangered the child’s physical or emotional

well-being. This inquiry focuses on conduct of the parent or a person with whom the parent

has placed the children. In re L.C., 145 S.W.3d at 797. Additionally, the evidence 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. Id. Under

5
The court held that “[i]t is illogical to reason that inappropriate, debauching, unlawful, or unnatural
conduct of persons who live in the hom e of a child, or with whom a child is com pelled to associate on a regular
basis in his hom e, are not inherently a part of the ‘conditions and surroundings’ of that place or hom e under
[form er] section 15.02(1)(D).” In the Matter of B.R., 822 S.W .2d at 106.

6
subsection (E) we look not only at evidence regarding the parent’s active conduct, but also

evidence showing the parent’s omissions or failures to act. Id.

“Endanger” means more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal family environment. In re M.C., 917 S.W.2d 268, 269 (Tex.

1996), (citing Tex. Dep’t of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).

See also In re T.N., 180 S.W.3d 376, 383 (Tex.App.–Amarillo 2003, no pet.). To

“endanger” includes exposure to loss or injury; thus, surroundings can endanger the well-

being of a child without the child suffering actual physical injury. In re L.C., 145 S.W.3d at

796.

Best Interest of the Child Under § 161.001(2)

To determine the best interest of the child, we apply a non-exhaustive list of

considerations. See Holley, 544 S.W.2d at 371-72. They include the desires of the child,

the emotional and physical needs of the child now and in the future, the emotional and

physical danger to the child now and in the future, the parental abilities of the individuals

involved, the programs available to those individuals to promote the best interest of the

child, the plans for the child by these individuals, the stability of the home, the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not

proper, and any excuse for the acts or omissions of the parent. Id.

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 Standard of Review–Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence to support an order terminating

parental rights, a court should look at all the evidence in the light most favorable to the

finding to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). To give appropriate deference to the

factfinder’s conclusions and the role of a court conducting a legal sufficiency review,

looking at the evidence in the light most favorable to the judgment means that a reviewing

court must assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so. In re J.F.C., 96 S.W.3d at 266. A corollary to this

requirement is that a court should disregard all evidence that a reasonable factfinder could

have disbelieved or found to have been incredible. Id. This does not mean that a court

must disregard all evidence that does not support the finding. Id. (Emphasis in original).

Disregarding undisputed facts that do not support the finding could skew the analysis of

whether there is clear and convincing evidence. Id. Thus, in conducting a legal sufficiency

review in a parental termination case, we must consider all the evidence, not just that

evidence which favors the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.

2005) (Emphasis in original).

The standard for reviewing the factual sufficiency of termination findings is whether

the evidence is such that a factfinder could reasonably form a firm belief or conviction

8
about the truth of the Department's allegations. In re C.H., 89 S.W.3d at 25. Under that

standard, we consider whether the disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a factfinder

could not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient. Id.

Only one statutory ground is required to terminate parental rights under section

161.001(1). See In re S.F., 32 S.W.3d 318, 320 (Tex.App.–San Antonio 2000, no pet.).

Therefore, we will affirm the termination order if the evidence is sufficient on any statutory

ground upon which the trial court relied in terminating the parent-child relationship. See

id.

Sufficiency of the Evidence for Termination Under § 161.001(1)(D) & (E)

In support of her sufficiency of the evidence argument, Appellant maintains that her

knowledge of undesirable facts about D.J. did not rise to the level necessary to establish

that she “endangered” D.R.J. Appellant cites, among other cases, In re C.J.F., 134 S.W.3d

343 (Tex.App.–Amarillo 2003, pet. denied), in support of her argument. In In re C.J.F., this

Court affirmed termination of parental rights of the child’s biological parents finding they

had endangered the child’s physical or emotional well-being. Id. at 351. As in the

underlying case, the father had been accused of injuring and killing a young sibling. Expert

9
testimony indicated that the deceased child had suffered multiple injuries to his body,

especially his head. Id. at 349. The evidence established a pattern of physical abuse by

the father against the mother and also against the deceased child. Both parents were also

drug abusers. In affirming the termination of the mother’s parental rights, we concluded

that “the singular fact that [the mother] allowed [the deceased child] to remain unattended

in the company of one she knew had abused him in the past provide[d] a basis for

termination under subsection (E).” Id. at 353.

In distinguishing C.J.F., T.W. argues there was no sign of an ongoing pattern of

abuse of her children by D.J. She asserts that her knowledge of (1) D.J. pushing and

slapping her on two occasions in 2006, (2) a handprint on D.R.J.’s face on one occasion

while in D.J.’s sole care, and (3) D.J.’s use of marihuana and cocaine dealing outside the

children’s presence is not legally nor factually sufficient conduct establishing endangerment

of her children. With this, we disagree.

T.W. had fifteen sessions with therapist Darren Snyder from May 29, 2007, to

November 26, 2007, to explore a history of violent relationships, unresolved grief,

unresolved anger, lack of insight, and lack of job skills. Although Snyder did not testify, his

reports were introduced into evidence through therapist Leta Acker, custodian of the

records. Snyder’s notes reflected that T.W. would need more therapy to make “positive

lasting changes for herself and her young son.”

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 T.W. was referred by Child Protective Services to Dr. Priscilla Kleinpeter, a family

therapist, for a psychological evaluation on June 6, 2007, approximately two months after

Q.M.J.’s death. Dr. Kleinpeter testified that the evaluation consisted of a clinical interview,

mental status exam, assessment of academic achievement, and personality evaluation.

According to Dr. Kleinpeter’s testimony, T.W. indicated that D.J. had physically abused her

on several occasions, associated with drug dealers, and she was aware that D.J. was

using drugs, particularly cocaine. T.W. and D.J. separated several times due to D.J.’s drug

use, abuse, irritability, anger, and failure to hold a job. T.W. explained that, to her

disapproval, D.J. disciplined D.R.J. by thumping him on the head; however, she believed

D.J. to be a good and patient father.

Dr. Kleinpeter described T.W. as guided by “fear of criticism, rejection, and

disapproval,” which she avoids by “appearing weak, accommodating, overly respectful, and

solicitous.” Her submissiveness causes her to be “easily dominated, influenced, and

abused.” She is “overhopeful of change” and believes in “magical solutions to problems.”

Dr. Kleinpeter diagnosed her with an anxiety disorder and a personality disorder with

dependent and paranoid features.

Dr. Kleinpeter testified that notwithstanding T.W.’s therapy from June 2007 through

September 2008, she had not changed and still posed a risk to D.R.J. According to Dr.

Kleinpeter, T.W. did not make good decisions as a parent by leaving her children with their

father as the sole caregiver knowing his tendencies to be abusive and use and sell drugs.

11
T.W.’s personality characteristics placed her at risk of allowing abuse of her child. Her

personality characteristics were part of a long standing pattern that would require long term

treatment and be slow to change.

Dr. Edward Basham, a psychologist who evaluated T.W. after a year and a half of

sessions with several therapists, testified that T.W. is an insecure individual with an I.Q.

of 75 and borderline intellectual functioning. He added that all her therapy had not made

the slightest impact on her ability to independently care for D.R.J. Services would not

change her personality nor raise her I.Q. According to Dr. Basham, T.W. has weak

parenting skills and a personality that draws her to persons who are controlling and

dominating. She also has weak verbal skills, poor judgment, lack of sensitivity, and lack

of concern. In assessing her parenting skills, he provided that T.W. “is at risk to place her

children in risky and neglectful circumstances. [T.W.] appears unable to evaluate the risk

that other people may present for her children.” Although Dr. Basham concluded that

parenting classes would be helpful, he recommended regular outside help for T.W. to

“function as an effective parent.”

Dr. Basham also testified that T.W. denied any domestic violence but admitted D.J.

pushed her at times. He described her as defensive in her manner with “blanket denials

about [there] being no problems.” As an illustration, he testified that T.W. has never had

a driver’s license and has received numerous tickets which remained unpaid; yet, she

continues to drive not realizing the solution is to obtain a driver’s license. Dr. Basham gave

12
a guarded prognosis that completion of services would not make a substantial difference

in improving T.W.’s parenting skills.

Lynn Jennings, a counselor, treated T.W. from December 2007 through September

2008, for relationship issues, specifically, how to avoid future abusive relationships. During

her testimony, she expressed her surprise to learn that T.W. had not been honest during

her sessions about D.J.’s prior abuse and drug dealing which came to light during other

expert witnesses’ testimony. She also learned that T.W. had failed to mention she had

seen a handprint on D.R.J.’s face just weeks before Q.M.J.’s death.

Before the revelations at trial and an examination of Dr. Basham’s report, Jennings

believed that T.W. was benefitting from her therapy sessions. She expressed the

undesirability and hopelessness of terminating T.W.’s parental rights. However, after

learning new information, she was concerned about T.W.’s lack of honesty during her

sessions. She worried about T.W.’s judgment in leaving her children under the supervision

of their father.

T.W. offered telling evidence against herself. When questioned, her answers

showed that she knew D.J. used marihuana and used and sold cocaine. Although she

testified that D.J. did not use or sell drugs around her children, laboratory results

introduced into evidence showed that D.R.J. tested positive for cocaine. The laboratory

employee who testified explained that the hair test result of 2201 pg/mg for D.R.J.

indicated that for a child to have that result “it would take some exposure on a regular to

13
daily basis to reach a point that even exceeds a positive ratio.” According to T.W., D.J.

was selling cocaine outside the home and she was unaware that D.R.J. had been exposed

to cocaine. She conceded that it was not a good parenting skill to leave her children with

someone who might put them in danger by selling cocaine.

T.W. also testified that she and D.J. were involved in a “few physical altercations.”

She testified that she left him several times not because she felt she was in danger, but

to avoid arguing and fighting.

During her psychological evaluation with Dr. Basham, T.W. gave him a history of her

relationship with D.J. According to Dr. Basham’s report, D.J. left T.W. in 2004 after

learning she was pregnant. D.J. moved in with another woman and her child. During that

time, D.J. was accused of burning the other woman’s child with a cigarette. The report

provides, “[T.W.] says that these charges were dropped, [D.J.] and the child’s mother

denied that [D.J.] was responsible, and [T.W.] gave little further thought to the matter.”

Evidence was presented that T.W. is not a bad person. Her drug tests were always

negative. Her mother testified that she has always maintained employment and kept a

clean home. According to the Department’s progress reports, T.W. complied with the

Department’s Family Service Plan and visited with D.R.J. as permitted by the Department.

She also completed a sexual abuse education class, parenting classes, and a Family Crisis

Resolution Program. The Department was concerned, however, after reviewing T.W.’s

14
sexual abuse education class course work, that she did not acknowledge or understand

the severity of the case.

T.W. testified that she is focusing on herself and her son and is more independent.

She testified that she can recognize the signs of a bad relationship and avoid one in the

future. She is working, has a nice home, and is planning on obtaining a general

equivalency diploma. She acknowledged her prior mistakes and claimed to be making

better decisions and having better judgment.

When questioned by the Department’s counsel, T.W. admitted that around

Christmas 2006, D.J. hurt her and she left him. T.W. conceded that D.J. was violent, used

drugs, and sold cocaine. However, she was comfortable leaving her children with D.J. as

the primary caregiver because he was their father and she did not believe he would hurt

them. However, she testified that when she noticed a handprint on D.R.J.’s face, she

assumed D.J. had hit D.R.J. T.W. expressed her hope that D.J. would change but

acknowledged that was not enough and she did not take any steps to protect her children.

The need for permanence is a paramount consideration for a child’s present and

future physical and emotional needs. In re M.A.M.M., 75 S.W.3d 73, 77 (Tex.App.–San

Antonio 2002, no pet.). The expert testimony and evidence showed that T.W. had

consulted several therapists and a psychologist for a year and a half. The gist of their

testimony is that therapy has had little or no impact on T.W.’s outlook as a mother. Dr.

Kleinpeter testified that past behavior is a predictor of future behavior. There was also

15
testimony that T.W. would require long term therapy to cope with her personality

characteristics. D.R.J. needs permanence and does not have the luxury of time.

T.W. has already lost one child and failed to protect D.R.J. from exposure to

cocaine. T.W.’s knowledge of D.J.’s unlawful and abusive conduct inherently created

conditions or surroundings which endangered the physical or emotional well-being of her

children to support termination under section 161.001(1)(D). In re B.R., 822 S.W.2d at

106. Additionally, T.W. engaged in a voluntary, deliberate, and conscious “course of

conduct” that supports the court’s finding under section 161.001(1)(E). Her knowledge of

D.J.’s abusive conduct and drug dealing placed her children in the care of someone who

engaged in conduct which endangered their physical or emotional well-being. We

conclude the evidence is legally and factually sufficient to support termination of T.W.’s

parental rights to D.R.J. under section 161.001(1)(D) and (E). Issue one is overruled.

Sufficiency of the Evidence to Support Best Interest Finding

We acknowledge there is a strong presumption that a child’s best interest is usually

served by awarding custody to the natural parents. In re V.L.K., 24 S.W.3d 338, 341 (Tex.

2000). However, we find the evidence described above successfully rebuts that

presumption and there is little evidence that is so significant that a reasonable trier of fact

could not have reconciled that evidence in favor of its finding that termination of T.W.’s

parental rights was in D.R.J.’s best interest.

16
 In reviewing D.R.J.’s best interests, we are guided by the Holley factors. 544

S.W.2d at 371-72. D.R.J.’s desires were not made known during the hearing. However,

he is living with his maternal great uncle and his family and according to the evidence, is

adapting well. Although T.W.’s mother expressed her desire that D.R.J. be returned to

T.W., she testified that D.R.J. is living in a safe, stable, environment. Lynn Jennings

testified that although she “hate[s] to see the rights of [T.W.] terminated,” it was her

understanding from reports that D.R.J. is “secure and happy and is growing and developing

well.”

T.W. testified that it is in D.R.J.’s best interest to be with her. There was also

evidence that T.W. complied with all the Department’s requests and services. However,

a parent’s compliance does not preclude a finding that termination is in a child’s best

interest. See In re A.C.B., 198 S.W.3d 294, 298 (Tex.App.–Amarillo 2006, no pet.). Erin

Moorman, D.R.J.’s caseworker, testified that termination of T.W.’s parental rights is in

D.R.J.’s best interest so that he can be adopted by his maternal uncle and have

permanency and “added perks.” Although T.W. completed the Department’s services, she

was also required to make adequate progress before D.R.J. could be placed with her.

According to Moorman, T.W.’s lack of honesty during her treatment and services hindered

her progress and the Department did not believe she could provide a safe placement for

D.R.J. If adopted, D.R.J. would be entitled to a subsidy for his care, Medicaid until age

eighteen, and college tuition. Moorman added that D.R.J. is bonding with his maternal

uncle and his family and they have moved into a larger home. The maternal uncle is also

17
willing to allow T.W. to have supervised contact with D.R.J. Applying the Holley factors,

we conclude the trial court’s finding that termination of T.W.’s parental rights to D.R.J is in

his best interest. Issue two is overruled.

Accordingly, the trial court’s order is affirmed.

Patrick A. Pirtle
Justice

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