Affirmed and Opinion filed March 27, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00462-CV
IN THE INTEREST OF D.M.D., T.S.D., T.M.D., D.M.D. A/K/A D.D., Children
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2004-10615J
OPINION
In four issues, appellant contends the evidence is legally and factually insufficient
to support the trial court’s termination of appellant’s parent-child relationship with her
four children, D.M.D., T.S.D., T.M.D., and D.M.D. a/k/a D.D. We affirm.
I. BACKGROUND
In 2002, appellant and her four children were living in Oklahoma. At some point
during 2002, Oklahoma protective services removed the children due to allegations of
abuse and neglect of the children and domestic violence between appellant and her
boyfriend, purportedly the children’s father. The father’s parental rights were terminated.
The children were returned to appellant after she completed required services.
Thereafter, appellant and the children moved to Texas.
In 2004, the Texas Department of Family and Protective Services (the
“Department”) received a referral, alleging appellant had abused T.S.D. and neglectfully
supervised D.D. During December 2004, the Department removed all four children from
appellant’s home. On June 23, 2005, the trial court entered a decree, appointing the
Department as the children’s permanent managing conservator and appellant as
possessory conservator. The trial court also ordered appellant to complete certain
assigned services and pay the Department $282.00 per month in child support.
On May 21, 2009, the Department moved to terminate appellant’s parental rights.
The Department alleged that termination was proper under subsections (F), (I) and (O) of
Texas Family Code section 161.001(1)1 and in the best interest of the children.
On June 29, 2010, the trial court conducted a placement review hearing, which
was recorded. Apparently, the parties and the trial court treated this hearing as a trial.
During the hearing, the Department caseworker assigned to appellant’s case testified, and
multiple exhibits were admitted. Toward the end of the hearing, the trial court stated, “I
don’t want to make any orders until we know what the therapist recommendations are,”
“We’re in trial,” and “[T]he kids need permanency and need to get it quick. And I don’t
want to reset it or continue this for too long.” The trial court signed a “Placement Review
Order,” on which the court noted, “Case is in trial[.] [Mother] will submit to Hair follicle
1
Under these subsections, a trial court may order termination of the parent-child relationship if
the court finds by clear and convincing evidence that termination is in the best interest of the child and the
parent has:
(F) failed to support the child in accordance with the parent’s ability during a period of
one year ending within six months of the date of the filing of the petition;
(I) contumaciously refused to submit to a reasonable and lawful order of a court under
Subchapter D, Chapter 261; or
(O) failed to comply with the provisions of a court order that specifically established the
actions necessary for the parent to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of [the Department] for not less than
nine months as a result of the child’s removal from the parent under Chapter 262 for the
abuse or neglect of the child.
Tex. Fam. Code Ann. § 161.001(1)(F), (I), & (O) (West Supp. 2011).
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[and urinalysis] today 6/29/2010[.] Trial will continue on 8/19/10 at 9:00 am. [Mother]
will disclose info about treatment [and] therapist she is seeing including medications etc.”
Apparently, the August 19, 2010 hearing was continued. At another hearing on
November 23, 2010, which was not recorded, the trial court ordered mediation. By this
time, a different Department caseworker, Natasha Roy, was assigned. On January 4,
2011, the trial court appointed a new attorney to represent appellant.
On April 26, 2011, the trial court held another hearing, which was recorded.
During this proceeding, the Department questioned Roy and presented several exhibits.
Appellant also testified. Following this hearing, the trial court signed a final judgment,
terminating appellant’s parental rights to all four children based on subsections (F), (I),
and (O) and the best interest of the children. The trial court also recited that “[o]n April
26, 2011, came on to be heard before this Court” the Department’s motion for
termination.
Based on this convoluted procedural history, it is difficult to determine when trial
actually began. Because of the trial court’s recitation in its judgment, we limit our
evidentiary review to the record for the April 26, 2011 hearing.2
II. LEGAL AND FACTUAL SUFFICIENCY
In four issues, appellant contends the evidence is legally and factually insufficient
to support the trial court’s findings that appellant violated subsections (F), (I), and (O)
and termination was in the best interest of the children.
A. Standard of Review
The burden of proof at trial in parental-termination cases is by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002). “Clear and convincing evidence” means the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth of
2
Regardless, our disposition would be the same even if we considered evidence presented during
the June 29, 2010 proceeding.
3
the allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (Vernon 2008);
In re J.F.C., 96 S.W.3d at 264. A trial court may terminate parental rights only upon
proof by clear and convincing evidence that the parent has committed an act set forth in
section 161.001(1) and termination is in the best interest of the child. Tex. Fam. Code
Ann. § 161.001(1), (2).
When considering legal sufficiency of the evidence to support termination, we
consider all evidence in the light most favorable to the finding to determine whether a
reasonable factfinder could have formed a firm belief or conviction that its finding was
true. In re J.F.C., 96 S.W.3d at 265–66. We assume the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found incredible. Id.
When reviewing factual sufficiency to support termination, we determine whether
the evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations. Id. The evidence is factually insufficient if, in
light of the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of its finding is so significant a factfinder could not reasonably
have formed a firm belief or conviction. Id.
The natural right between parents and their children is one of constitutional
dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re U.P., 105 S.W.3d 222,
229 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Therefore, a court should
strictly scrutinize termination proceedings and the involuntary termination statutes in
favor of the parent. Holick, 685 S.W.2d at 20–21; In re U.P., 105 S.W.3d at 229.
B. Analysis
1. Section 161.001(1)(F)
In her first issue, appellant contends the evidence is legally and factually
insufficient to support the trial court’s finding relative to subsection (F). Under
subsection (F), a trial court may order termination of the parent-child relationship if the
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court finds by clear and convincing evidence that the parent has “failed to support the
child in accordance with the parent’s ability during a period of one year ending within six
months of the date of the filing of the petition.” Tex. Fam. Code Ann. § 161.001(1)(F).
The trial court may not order termination under subsection (F) without clear and
convincing evidence of the parent’s ability to support her child during the statutory
period. See In re T.B.D., 223 S.W.3d 515, 518 (Tex. App.—Amarillo 2006, no pet.).
The Department requested termination pursuant to subsection (F) in its motion for
termination, filed March 24, 2009. Accordingly, the relevant time period for
consideration of subsection (F) is any twelve consecutive months between September 24,
2007 and March 24, 2009. See In re C.L., 322 S.W.3d 889, 892 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied).
It is undisputed that in the 2005 decree, appellant was ordered to pay the
Department $282.00 per month in child support. The Department argues that a child-
support order is prima facie evidence of the parent’s ability to pay support for purposes of
subsection (F), which the parent can rebut by affirmatively pleading and showing an
inability to pay. See In re J.M.M., 80 S.W.3d 232, 250–51 (Tex. App.—Fort Worth
2002, pet. denied), disapproved of on other grounds by In re J.F.C., 96 S.W.3d at 267 &
n.39. We decline to adopt this rule and instead agree with the majority of courts which
have considered this issue that a previous child-support order is no evidence of a parent’s
ability to pay for purposes of subsection (F); to hold otherwise would improperly shift the
burden to the parent to disprove ability to pay. See In re N.A.F., 282 S.W.3d 113, 117–
18 (Tex. App.—Waco 2009, no pet.); In re E.M.E., 234 S.W.3d 71, 73–74 (Tex. App.—
El Paso 2007, no pet.); In re D.S.P., 210 S.W.3d 776, 780–81 (Tex. App.—Corpus
Christi 2006, no pet.); Morris v. Barnes, No. 03-02-00546-CV, 2004 WL 792201, at *4
(Tex. App.—Austin Apr. 15, 2004, no pet.) (mem. op.); see also In re C.L., 322 S.W.3d
at 893 n.2 (recognizing split among courts of appeals regarding this issue). Accordingly,
the fact that appellant was ordered to pay $282.00 per month in child support has no
bearing on her actual ability to provide support under subsection (F).
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Roy provided the following testimony relative to appellant’s support obligation.
Appellant was aware of her support obligation but did not pay support at any time. The
Department would have a record of support payments had any been made. Appellant was
not working at the time of trial and informed Roy she was unable to work because she
was disabled and receiving social-security benefits. Although there was a period of time
when appellant was not visiting the children, the court ordered the visitations to resume
in November 2010. Since that time, appellant has visited the children twice a month.
Roy attended each visitation and observed that appellant would “take things” for the
children, including clothing and money.3
Appellant provided the following testimony. Appellant had been unemployed
since 2008. In 2008, appellant was hospitalized for one month due to depression. A few
weeks after appellant was released from the hospital, she began receiving $674.00 per
month in social-security benefits due to her depression. At some point, appellant also
began receiving food stamps. In 2008 or 2009, appellant moved to an apartment pursuant
to a housing program, requiring her to pay $79.20 per month in rent. At the time of trial,
appellant was seeking employment and had a job interview scheduled for the following
week. Appellant disagreed that she was seeking employment merely to remain qualified
to receive food stamps.
During appellant’s testimony, the following exchange occurred:
[Appellant’s counsel:] And you were ordered to pay child support in . . .
2005, would you tell the Court why it is that you were not able to pay the
child support?
[Appellant:] I don’t remember.
[Appellant’s counsel:] Okay. But you were - -
[Appellant:] I always took my kids things to substitute for my child support.
My visits - - or when I didn’t have a visit, I would take my kids things to the
visit. [Roy] has picked up things from my house for my children, you
3
We recognize that these visits did not occur within the September 24, 2007 through March 24,
2009 timeframe.
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know, that cost more than $282 a month, and all the shoes and stuff like
that. So, I would substitute when I had money, I feel that my gifts for my
children, the things that I bought for my children, would substitute for that
282 a month since that time.
(emphasis added). Appellant admitted she never informed the caseworker that she
intended to buy her children necessities instead of paying child support.
Based on appellant’s testimony, the trial court reasonably could have found that
appellant always—meaning from the time she was ordered to pay support until the
present—bought her children items in lieu of paying child support; these items would be
delivered to the children even when appellant did not have visitation rights. This
evidence supports a finding that appellant had the ability to pay some amount of child
support during twelve consecutive months between September 24, 2007 and March 24,
2009.
It is well-settled that a parent has a duty to provide support for her child, even
when the parent does not have custody of the child and before the trial court orders the
parent to pay support. See R.W. v. Tex. Dep’t of Protective & Regulatory Servs., 944
S.W.2d 437, 440 & n.4 (Tex. App.—Houston [14th Dist.] 1997, no writ.). Under the
Family Code, “support” includes “providing the child with clothing, food, shelter,
medical and dental care, and education.” Tex. Fam. Code Ann. § 151.001(a)(3) (West
2008). By consistently buying clothing and shoes for the children, appellant ostensibly
provided them some support.4 However, appellant was court-ordered to pay the
Department $282.00 per month in child support. During all relevant times, the
Department had been the permanent managing conservator of the children and supervised
the children while in foster care. Under these facts, appellant’s primary support
obligation was to pay the court-ordered child support. Nevertheless, appellant ignored
this responsibility by providing certain necessities directly to the children—in the process
4
We note that providing occasional gifts does not fulfill a parent’s obligation to support her
child. See Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 358 (Tex. App.—
Austin 2000, no pet.).
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circumventing the ability of the Department and the foster families to recoup money they
were spending to support the children. Because appellant had the ability but chose not to
pay at least some amount of child support, the trial court could have reasonably found
appellant failed to support the child in accordance with her ability during a period of one
year ending within six months of the date of the filing of the petition.
Accordingly, we hold the evidence is legally sufficient to support a firm belief or
conviction that appellant failed to support her children as described in subsection (F).
Additionally, we hold the evidence is factually sufficient because evidence weighing
against the trial court’s finding is not so significant it precluded the court from reasonably
forming a firm belief or conviction that appellant failed to support her children as
described in subsection (F). Therefore, the evidence is legally and factually sufficient to
support the trial court’s finding that the Department proved by clear and convincing
evidence appellant committed the acts prohibited by subsection (F). Appellant’s first
issue is overruled. Having concluded the evidence is sufficient to support one of the
grounds for termination under section 161.001(1), we need not consider sufficiency of the
evidence supporting other grounds under this section. See Phillips, 25 S.W.3d 348, 358–
59. Instead, we proceed to sufficiency review relative to the best interest of the children.
2. Best Interest of the Children
In her fourth issue, appellant contends the evidence is legally and factually
insufficient to support the trial court’s finding that termination was in the best interest of
the children.
In reviewing sufficiency of the evidence to support a best-interest finding, a court
may consider several factors, including (1) the desires of the child, (2) the present and
future physical and emotional needs of the child, (3) the present and future emotional and
physical danger to the child, (4) the parental abilities of the persons seeking custody, (5)
the programs available to assist those persons seeking custody in promoting the best
interest of the child, (6) the plans for the child by the individuals or agency seeking
custody, (7) the stability of the home or proposed placement, (8) acts or omissions of the
8
parent which may indicate the existing parent-child relationship is not appropriate, and
(9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976); In re U.P., 105 S.W.3d at 230. This list is not exhaustive, nor is
evidence required on all nine factors to support a finding that termination is in the child’s
best interest. Holley, 544 S.W.2d at 372; In re U.P., 105 S.W.3d at 230.
Although there is a strong presumption that it is in the child’s best interest to allow
the natural parent to retain custody, the presumption ceases when evidence to the contrary
is presented. In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—San Antonio 2003, no pet.).
The same evidence of acts or omissions that supports termination under section
161.001(1) may be probative in determining a child’s best interest. In re A.A.A., 265
S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
We will first consider the desires of the children, the Department’s plans for the
children, and the stability of the proposed placement. At the time of trial, D.M.D. was
thirteen years old, T.S.D. was eleven years old, T.M.D. was ten years old, and D.D. was
eight years old. The children did not testify at trial, and no statement was provided on
their behalf. However, Roy testified that (1) D.M.D. responds well to appellant, wants to
see her, and “is real close to her,” (2) T.S.D. and T.M.D. are also close to appellant but do
not listen to her and it is “up in air” regarding whether they want to see her, and (3)
unlike his siblings, D.D. has told Roy that he does not want to see appellant. Roy also
testified, “I believe [the three younger children] are looking for their foster parent to
adopt them.” Roy denied that the children cry when they are unable to visit appellant.
The foster mother of T.S.D., T.M.D., and D.D. has cared for them for two years
and indicated she loves them. The foster mother is willing to adopt these children if their
behavior improves. Roy testified that the Department would seek a permanent home for
the children even if the foster mother does not ultimately adopt them.
Roy also testified that it is in D.M.D.’s best interest to be adopted by his maternal
grandmother, whom he visited periodically. The grandmother has a heart condition and
was receiving therapy to determine whether she would be able to care for D.M.D.
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The evidence supports a finding that D.M.D. lived with a different foster family
than his siblings because he was “sexually acting out” toward them. However, the
children visited each other, and the Department will continue to allow such visits if
appellant’s parental rights are terminated. Appellant testified that she does not believe
D.M.D. was “acting out sexually” toward his siblings.
We next consider appellant’s parenting abilities, her acts or omissions which
demonstrate that the parent-child relationship was improper, and any excuses she has
offered for her acts and omissions. In November 2010, appellant signed a new FSP,
requiring that she, among other actions, complete psychiatric, psychological, and
substance-abuse evaluations, follow all recommendations stemming from the evaluations,
complete parenting classes, and maintain employment and safe, stable housing. Roy
testified that the court orally ordered appellant to comply with the 2010 FSP.5 Roy told
appellant that “if she really wanted her kids, she needed to work her services and work
with [Roy].”
In October 2010, appellant received a psychological evaluation. According to the
evaluating psychologist, appellant “minimized or otherwise misrepresented various
aspects of her personal history, including her substance abuse history, her relationship
history, and her mental health history.” Notably, appellant disclosed that she had been
diagnosed with bipolar disorder but refused to discuss the details of her involuntary
psychiatric hospitalization in 2005 or why she sought psychiatric services in 2010.
Appellant also denied that she and her ex-boyfriend engaged in physical violence; this
statement conflicted with information appellant provided in 2005. Appellant told the
psychologist that doctors had prescribed her several psychiatric medications—including
Risperdal in 2010—but she discontinued using the medications because “she disliked the
side effects.” Among several recommendations, the psychologist recommended that
appellant’s psychiatric-treatment records be obtained “to assist in case management and
5
However, there is little or no evidence that the trial court’s order “specifically established the
actions necessary for [appellant] to obtain the return of the [children].” See Tex. Fam. Code Ann. §
161.001(1)(O).
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treatment planning.”
In January 2011, appellant received a psychiatric evaluation. The evaluating
psychiatrist noted that appellant initially arrived for evaluation in December 2010 but was
sent home because she was uncooperative and responded “none of your business” when
asked questions. Appellant testified she was uncooperative because the psychiatrist
asked her to disclose personal information. Nevertheless, appellant returned for
evaluation one month later. Appellant told the psychiatrist that she was prescribed
Risperdal by a doctor from Legacy Clinic and had been taking the medication for one
year; this statement conflicted with information appellant provided to the psychologist.
Appellant also rejected the psychiatrist’s recommendation to receive intramuscular
injections to promote medication compliance.
According to Roy, appellant was required under the 2010 FSP to sign a release
allowing the Department to obtain certain medical information relevant to this case. Roy
testified appellant previously informed the trial court that she had been receiving
individual counseling at Legacy Clinic. However, Roy did not know the nature of
treatment appellant was receiving at Legacy Clinic. Appellant refused to sign a release
authorizing Legacy Clinic to disclose information to the Department. Roy testified
appellant never explained why she refused to sign the release. Roy also testified
appellant’s refusal to sign a release was “in keeping with her conduct and refusal to give
information throughout this case.” Appellant testified that she refused to sign the release
because there was no language identifying the intended recipient or whether it pertained
to medical records. Appellant also testified that she had signed another release during the
course of this case “when [she] thought [the release was] appropriately filled out.”
Roy further testified that appellant received individual counseling at Texas Life
Enhancement at the Department’s expense. The record contains three “Progress Notes”
from Texas Life Enhancement for January and February 2011. These notes demonstrate
that appellant initially denied personal responsibility for shortcomings regarding her
family life, employment, and living situation but apparently was making progress with
11
her therapist.
Roy testified she had not received proof that appellant completed a substance-
abuse evaluation or a parenting class, followed the recommendations stemming from her
psychiatric and psychological evaluations, or obtained employment. When Roy asked
appellant why she failed to complete her substance-abuse evaluation, appellant replied
that the provider kept rescheduling her appointment. However, Roy was told by the
provider that appellant failed to attend orientations for the evaluation.
Appellant completed a parenting class in 2007 but had not completed a parenting
class pursuant to the 2010 FSP. According to Roy, appellant was required to attend
another parenting class because the class was “only good for a year.” Nevertheless, Roy
agreed “it would be kind of impossible” for appellant to pay for a parenting class because
she was unemployed. Appellant testified that she had not completed another parenting
class because she was unable to find a class and had recently received paperwork from
Roy regarding the class. Appellant explained she was unable to afford any of the
parenting classes recommended by Roy.
According to appellant, she had not completed all her services because of time and
financial constraints. Appellant testified that she is committed to attending individual
therapy and a weekly class for her housing program and was actively seeking
employment. Appellant stated that she was not pursuing services without first following
Roy’s recommendations.
As noted above, appellant testified that she had been unemployed since 2008 but
was seeking employment. She was receiving social-security benefits and food stamps.
Appellant was ordered to pay child support every month to the Department but instead
decided to provide items directly to her children. In a letter drafted shortly after the
Department became the permanent managing conservator in 2005, a therapist noted
appellant undermined the foster parent by bringing her children clothing: “Reportedly,
the mother undermines the efforts of the foster parent by undressing [the children],
redressing them with items purchased by her. The items purchased by the foster parent,
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reportedly, are not returned to the children and/or foster parent.”
Regarding appellant’s living arrangement, she obtained a one-bedroom apartment
through a housing program. Pursuant to the program, appellant was required to attend a
weekly class which related to topics such as drug-abuse prevention and nutrition. Roy
testified that appellant was doing well in the program and maintained a clean apartment.
Appellant admitted she was not ready for her children to be returned to her because she
lived in a one-bedroom apartment. When asked why she was “still not quite ready” to
have her children returned even after six years appellant explained that “[a] lot has gone
on between here and there,” including moving and her diagnosis of depression.
Pertaining to her mental health, appellant testified that she does not suffer from
“manic rage” or “Bipolar Level 2.” Appellant explained she was taking Risperdal which,
according to her doctor, was all she needed to treat her depression.
Roy provided the following testimony regarding the children’s behavioral changes
after visitations with appellant resumed in November 2010. There was a period of time
when appellant was not allowed to visit the children; during this period, the children were
better behaved for the foster mother. After visits resumed, the children’s behavior
suddenly worsened. The children “were walking off from the foster parent, leaving
school, getting into fights,” and their school grades lowered. The children displayed
similar problems when they previously had visitations with appellant. Roy admitted that
appellant acted appropriately during the visits. Appellant testified that the visits were fun
and “going fine.” According to appellant, Roy told her the children were misbehaving
even before the visits resumed. Further, appellant testified that the children’s ad litem
explained the children were “difficult” because they have behavioral problems and are on
medication.
All of the children are prescribed medications for ADHD or bipolar disorder. Roy
testified she was unsure whether the children suffered from these conditions when they
were initially placed into the Department’s custody. Roy admitted the children were not
responding well to therapy but opined that continued therapy might be beneficial. Roy
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also opined that the children’s behavioral problems were not caused by their living in a
non-adoptive foster home but by the “on and off” visitations with appellant. According
to Roy, the children’s behavior would improve if the visits ceased.
In sum, the foregoing evidence supports the following findings: (1) the children
have serious mental health conditions and behavioral problems; (2) D.M.D. desires to
visit appellant, T.S.D. and T.M.D. are agnostic regarding visiting appellant, and D.D.
does not want to visit appellant; (2) the three younger children want to be adopted by
their foster mother; (3) the foster mother will adopt the children if their behavior
improves; (4) there is a possibility D.M.D. will be adopted by his maternal grandmother;
(5) regardless of whether the children are adopted by their current caretakers, the
Department will seek a permanent home for them; (6) the children have not had a
permanent, stable home since they were placed into the Department’s custody in
December 2004; (7) appellant was unemployed, lived in a single-bedroom apartment, and
was not prepared to have her children returned; (8) even after six years, appellant still
refuses to cooperate fully with, and provides inaccurate information to, the Department
and service providers; (9) appellant failed to complete the services outlined in her 2010
FSP and follow recommendations from service providers; (10) appellant refused to
accept certain unpleasant facts, such as D.M.D. “sexually acting out” toward his siblings;
and (11) the children’s behavior worsened because visitations with appellant resumed.
We hold the evidence is legally sufficient to support a firm belief or conviction
that termination of appellant’s parental rights is in the best interest of the children.
Additionally, we hold the evidence is factually sufficient because evidence weighing
against the trial court’s finding is not so significant it precluded the court from reasonably
forming a firm belief or conviction that termination was in the best interest of the
children. Accordingly, the evidence is legally and factually sufficient to support the trial
court’s finding the Department proved by clear and convincing evidence that termination
of appellant’s parental rights was in the best interest of the children. See, e.g., In re
M.L.J., No. 2-07-178-CV, 2008 WL 1932076, at *7 (Tex. App.—Fort Worth May 1,
14
2008, pet. denied) (mem. op.) (considering, among other acts and omissions, parents’
refusal to cooperate with Department as evidence termination was in child’s best
interest); In re J.J., 05-06-01472, 2008 WL 223841, *5–6 (Tex. App.—Dallas Jan. 29,
2008, no pet.) (mem. op.) (same). We overrule appellant’s fourth issue.
We affirm the trial court’s judgment.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Seymore, Boyce, and McCally.
15