NO. 12-12-00225-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 294TH
B.M.A.J., § JUDICIAL DISTRICT COURT
A CHILD § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
J.S. appeals the termination of her parental rights to B.M.A.J. J.S. raises five issues on
appeal. We affirm.
BACKGROUND
J.S. and W.J. are the parents of B.M.A.J., who was born on October 18, 2006.1 On January
7, 2011, the Department of Family and Protective Services (the Department or CPS) filed a
petition for protection of B.M.A.J., for conservatorship, and for termination in a suit affecting the
parent-child relationship. That same day, the trial court signed an emergency order naming the
Department as temporary sole managing conservator of B.M.A.J. On January 13, 2011, an
adversary hearing was held, and the trial court appointed the Department as temporary managing
conservator and J.S. and W.J. as temporary possessory conservators of B.M.A.J.
A bench trial was held on May 9, 2012.2 Ultimately, the associate judge determined that
the parent-child relationship between J.S. and B.M.A.J. should be terminated.
1
W.J. signed an affidavit of voluntary relinquishment of his parental rights to B.M.A.J., and the court
terminated his parental rights on June 9, 2011. W.J. did not appeal.
2
The original dismissal date for this case was January 9, 2012. On January 3, 2012, the associate judge
extended the dismissal date to July 7, 2012. See TEX. FAM. CODE ANN. § 263.401(a), (b) (West 2008).
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights. In
re C.L.C., 119 S.W.3d 382, 390 (Tex. App.—Tyler 2003, no pet.); Vela v. Marywood, 17 S.W.3d
750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001). When
the state seeks to terminate one’s parental rights, it seeks not only to infringe one’s fundamental
liberty interest, but to end it. See In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). A termination
decree is “complete, final, irrevocable [and] divests for all time the parent and child of all legal
rights, privileges, duties, and powers with respect to each other except for the child’s right to
inherit.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179
(Tex. App.—El Paso 1998, no pet.). Thus, the breaking of bonds between a parent and child “can
never be justified without the most solid and substantial reasons.” Wiley, 543 S.W.2d at 352; In
re Shaw, 966 S.W.2d at 179. Because a termination action “permanently sunders” the bonds
between a parent and child, the proceedings must be strictly scrutinized. Wiley, 543 S.W.2d at
352; In re Shaw, 966 S.W.2d at 179. However, parental rights are not absolute, and it is vital that
the emotional and physical interests of the child not be sacrificed at the expense of preserving that
right. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Section 161.001 of the Texas Family Code permits the termination of parental rights if two
elements are met. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). First, the parent must
have engaged in any one of the acts or omissions itemized in the first subsection of the statute. Id.
§ 161.001(1) (West Supp. 2012); In re C.L.C., 119 S.W.3d at 390. Second, termination must be
in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West Supp. 2012); In re
C.L.C., 119 S.W.3d at 390. Both elements must be proved by “clear and convincing evidence,”
and proof of one element does not alleviate the petitioner’s burden of proving the other. TEX.
FAM. CODE ANN. § 161.001; In re C.L.C., 119 S.W.3d at 390. “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 the allegations sought to be established. TEX. FAM. CODE ANN.
§ 101.007 (West 2008). Because there is a strong presumption that the best interest of the child is
served by preserving the parent-child relationship, the burden of proof rests upon the party
2
seeking to deprive the parent of his or her parental rights. See Wiley, 543 S.W.2d at 352; In re
C.L.C., 119 S.W.3d at 391.
REQUEST FOR DE NOVO TRIAL
In her first issue, J.S. contends that the trial court erred by refusing to grant her request for
a de novo trial. We disagree.
Applicable Law
The family code authorizes the presiding judge of each administrative judicial region to
appoint associate judges to preside over child protection cases. See TEX. FAM. CODE ANN.
§ 201.201 (West. Supp. 2012). If an associate judge is appointed, all child protection cases shall
be referred to the associate judge. See id. § 201.201(d). Once appointed, the associate judge has
the authority to render and sign any pretrial order and recommend to the referring court any order
after a trial on the merits. See TEX. FAM. CODE ANN. § 201.204 (West 2008); see also Attorney
Gen. of Tex. v. Orr, 989 S.W.2d 464, 467 (Tex. App.—Austin 1999, no pet.). After a hearing, the
associate judge shall provide the parties participating in the hearing notice of the substance of the
associate judge’s report, including any proposed order. TEX. FAM. CODE ANN. § 201.011(b) (West
2008). Notice of the associate judge’s report may be given “in open court, or by oral statement or
a copy of the associate judge’s written report, including any proposed order . . . .” Id.
§ 201.011(c)(1); see also Perez v. Tex. Dep’t of Protective & Regulatory Servs., No. 03-00-
00812-CV, 2002 WL 534138, at *2 (Tex. App.—Austin Apr. 11, 2002, no pet.).
A party may appeal the associate judge’s report by filing a written request for a de novo
hearing not later than the seventh working day after the date the party receives notice of the
substance of the associate judge’s report. TEX. FAM. CODE ANN. § 201.015(a) (West Supp. 2012).
A party that files a notice of appeal to the referring court in compliance with the family code is
entitled to a de novo hearing before that court. See id. § 201.015(f); Orr, 989 S.W.2d at 467.
Discussion
Here, the associate judge conducted a bench trial on May 9, 2012. That same day, after
hearing closing arguments, the associate judge announced as follows:
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I do find by clear and convincing evidence that [J.S.] has knowingly placed or
allowed the child to remain in conditions or surroundings which endangered the
physical or emotional well[] being of the child.
I further find by clear and convincing evidence that [J.S.] has engaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endangered the physical or emotional well[]being of the child.
....
I further find by clear and convincing evidence that it’s in the best interest of
[B.M.A.J.] that the parental rights of [J.S.] be terminated. I thus order the
termination of the parental rights of [J.S.] to the child [B.M.A.J.].
J.S. filed a request for a de novo hearing on July 2, 2012. She argues that her request was
timely because the associate judge did not issue her report in writing until June 14, 2012, and she
did not receive notice of the associate judge’s written order of termination until June 21, 2012.
J.S. cites three cases to support her contention that the time period for filing a request for a de
novo hearing does not begin until the associate judge issues her report in writing. But in these
cases, the timeliness of the request did not turn on whether the substance of the associate judge’s
report was made orally or in writing. See Schwertner v. Tex. Dep’t of Family & Protective
Servs., No. 03-11-00347-CV, 2011 WL 5138714, at *3 (Tex. App.—Austin Oct. 25, 2011, no
pet.) (mem. op.) (assuming ineffective assistance of counsel when request for de novo hearing was
untimely); In re M.P., No. 04-08-00881-CV, 2009 WL 2413694, at *1 (Tex. App.—San Antonio
Aug. 5, 2009, no pet.) (mem. op.) (request for de novo hearing untimely when filed eight working
days after attorney signed order approving it as to form); Harrell v. Harrell, 986 S.W.2d 629, 631
(Tex. App.—El Paso 1998, no pet.) (referring court erred by entering order after appellant filed
timely request for de novo hearing). Thus, these cases are inapplicable here.
Because the associate judge announced, orally and in open court, the grounds on which
she terminated J.S.’s parental rights, J.S. had notice of the substance of the associate judge’s
report on May 9, 2012.3 See TEX. FAM. CODE ANN. § 201.011(c); id. § 201.015(a). Therefore,
J.S.’s July 2, 2012 request for a de novo hearing was untimely. See, e.g., Perez, 2002 WL
534138, at *3 (oral statements by presiding judge in open court sufficiently expressed “substance”
of decision to trigger deadline to appeal decision to referring court). Consequently, J.S. was not
3
At the time of the associate judge’s pronouncement, Appellant was present in court and represented by
counsel.
4
entitled to a de novo hearing. See In re E.M., 54 S.W.3d 849, 852 (Tex. App.—Corpus Christi
2001, no pet.) (to be entitled to de novo hearing, party must timely file notice of appeal). The trial
court did not err in denying J.S.’s motion for a trial de novo. We overrule J.S.’s first issue.
STANDARD OF REVIEW: SUFFICIENCY OF THE EVIDENCE
When, as here, the burden of proof is clear and convincing evidence, we conduct a legal
sufficiency review by looking at all of the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or conviction that its
finding was true. In re J.F.C., 96 S.W.3d at 266. We must assume that the fact finder resolved
disputed facts in favor of its finding if a reasonable fact finder could do so. Id. Thus, it follows
that the reviewing court should disregard all evidence that a reasonable fact finder could have
disbelieved or found to have been incredible, but this does not mean that the reviewing court must
disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do
not support the finding could skew the analysis of whether there is clear and convincing evidence.
Id. If, after conducting our legal sufficiency review, we determine that no reasonable fact finder
could form a firm belief or conviction that the matter which must be proven is true, then we will
conclude that the evidence is legally insufficient. Id.
When we conduct a factual sufficiency review, we must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our
inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations. Id. We consider whether the disputed
evidence is such that a reasonable fact finder could not have resolved that disputed evidence in
favor of its finding. Id. If, when viewed in light of the entire record, the disputed evidence is so
significant that a fact finder could not have reasonably formed a firm belief or conviction, then the
evidence is factually insufficient. Id. In finding evidence factually insufficient, the appellate
court should detail why it has concluded that a reasonable fact finder could not have credited
disputed evidence in favor of its finding. Id. at 267.
The standard of review for legal and factual sufficiency challenges maintains a deferential
standard for the fact finder’s role, which means the trier of fact is the exclusive judge of the
credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d at 26-
5
27; Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston [1st Dist.] 1997, pet.
denied). Thus, our review must not be so rigorous that the only fact findings that could withstand
review are those established beyond a reasonable doubt. In re C.H., 89 S.W.3d at 26.
TERMINATION UNDER SECTION 161.001(1)(E)
In her second and third issues, J.S. challenges the legal and factual sufficiency of the
evidence supporting termination of her parental rights under subsections 161.001(1)(D) and (E) of
the family code. We first discuss the sufficiency of the evidence with regard to subsection (E),
whether J.S. engaged in conduct or knowingly placed B.M.A.J. with persons who engaged in
conduct that endangered his physical or emotional well being. See TEX. FAM. CODE ANN.
§ 161.001(1)(E) (West Supp. 2012).
Applicable Law
A court may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has engaged in conduct or knowingly placed the child
with persons who engaged in conduct that endangers the physical or emotional well being of the
child. See id. § 161.001(1)(E). “Endanger” means more than a threat of metaphysical injury or
the possible ill effects of a less than ideal environment. Texas Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987). It is not necessary that the conduct be directed at the child or
that the child actually suffers injury. Id. It is sufficient that the child’s well being be jeopardized
or exposed to loss or injury. In re J.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ
denied). A child need not develop or succumb to a malady before it can be said that
endangerment arises. See In re P.E.W., 105 S.W.3d 771, 777 (Tex. App.—Amarillo 2003, no
pet.).
The cause of the endangerment must be the direct result of the parent’s conduct and must
be the result of a continuing course of conduct rather than a single act or omission. In re A.S.,
261 S.W.3d 76, 83, 86 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); see also In re Baby
Boy R., 191 S.W.3d 916, 925 (Tex. App.—Dallas 2006, pet. denied) (instability and incarceration
can be continuing course of conduct supporting termination). Evidence of a parent’s endangering
conduct includes not only the parent’s actions, but also the parent’s omissions or failures to act.
Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—
6
Dallas 1995, no writ). The specific danger to the child’s well being may be inferred from parental
misconduct standing alone. In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no
pet.).
Evidence in the Light Most Favorable to the Finding
B.M.A.J. was four years old at the time of his most recent removal from his mother’s
custody. During the late night hours of January 6, 2011, B.M.A.J.’s father, W.J., called the police,
stating that B.M.A.J. was “out of control.” W.J. wanted to “scare[] [B.M.A.J.] straight” and asked
the police to come and arrest and handcuff B.M.A.J., put him in the police car, and then put him in
a boot camp. When the police were called, J.S. was at home with B.M.A.J. and W.J. and was
sick. After law enforcement arrived, CPS was notified and CPS Investigator Terri Baker came to
the residence. According to Baker, as she drove towards the residence, she noticed that the
outside was dark, with no signs of electricity, and the house appeared vacant. When Baker
arrived, she found mattresses on the living room floor. The front door could be opened only wide
enough for people to enter the home one at a time because the mattresses were obstructing the
door.
Once inside, Baker observed a chair and three mattresses on the living room floor along
with “bits and pieces [of] debris.” The mattress believed to be B.M.A.J.’s had a “thin” blanket
and was “butted up next to an open-flame heater.” A window in the front of the house was
broken, and pieces of glass remained in the window with nothing to prevent the glass from falling
into the house. Baker testified that a sheet covered the window.
Baker also stated that upon walking into another room, she saw a “huge” litter box that
appeared not to have been emptied for a “while,” that animal feces “covered” the floor, and that
along with the feces in the floor were children’s toys. Baker’s affidavit also made mention of
“finger-shaped” bruising on B.M.A.J., but at the time of trial, she could not remember where the
bruising was located. No photographs were presented to show the bruising that Baker mentioned
in her affidavit.
As she walked into the kitchen, Baker saw “overflowing” trash cans, several dishes in the
sink, and medication on the counter that was prescribed for B.M.A.J. and required refrigeration.
Baker testified that because there was no electricity, the refrigerator was not working and had a
“horrid” smell. Baker observed a “burned spot” on the kitchen floor. At trial, W.J. explained that
7
approximately two weeks before his removal, B.M.A.J. started a fire in the kitchen while he and
J.S. were at home.
J.S.’s sister, S.M., testified that when J.S. and W.J. first moved into the home, B.M.A.J.
lived with her because J.S. said their home was not “safe” for B.M.A.J. But on the day before
B.M.A.J. was removed, W.J. picked up B.M.A.J. from S.M.’s house to take him to W.J. and J.S.’s
residence, even though J.S. was sick. S.M. testified that she had never been inside J.S.’s
residence, but when she saw the photographs of the home at the time of B.M.A.J.’s removal, she
agreed that B.M.A.J. “shouldn’t have been there.” Upon seeing the photographs, S.M. confirmed
that she would not allow her own children to live there, and that it did not surprise her that CPS
removed B.M.A.J. because the conditions of the residence were “hygienically” dangerous for him.
J.S.’s fiancé testified on J.S.’s behalf and was also shown photographs of the residence.
When asked whether he would have allowed his child to live in conditions like those depicted in
the photographs, he answered, “Huh-[]uh.”
Testimony revealed that the January 7, 2011 removal of B.M.A.J. from his mother’s
custody was the second time he had been removed since birth. J.S. confirmed that she had
custody of B.M.A.J. for only nine months of his life, “more or less.”4 Testimony also revealed
that CPS received a referral from the hospital when B.M.A.J. was one day old, and the family was
given the equivalent of what is now referred to as “family-based safety services.” But despite
these services, B.M.A.J. was removed when he was eight weeks old due to “questionable”
bruising, “adult-size bite marks and other miscellaneous bruising along [B.M.A.J.’s] body.” It
was also confirmed that B.M.A.J. had suffered a fractured skull. As a result, B.M.A.J. lived with
another family until J.S. sought and obtained permanent managing conservatorship of him in the
late summer of 2010.5 J.S. testified B.M.A.J.’s first removal occurred “[b]ecause [she] was
working. And that’s when everything fell apart.”
Undisputed Facts Not Supporting the Finding
There was no testimony that J.S. was the individual who inflicted the injuries that resulted
in B.M.A.J.’s first removal. There is also no evidence that J.S. inflicted any injuries on B.M.A.J.
leading up to his second removal.
4
At the time of trial, B.M.A.J. was five years old.
5
By the time J.S. regained permanent managing conservatorship of B.M.A.J., he was almost four years old.
8
Disputed Evidence
The majority of the disputed evidence at trial related to the length of B.M.A.J.’s stay at
W.J. and J.S.’s residence. There was testimony that B.M.A.J. stayed at S.M.’s house most of the
time, and had stayed at W.J. and J.S.’s residence “[m]aybe two [or] three” nights. S.M. testified
that B.M.A.J. lived with her approximately one month, but W.J. testified that B.M.A.J. lived with
S.M. for two or three months. W.J. testified that B.M.A.J. was mostly at S.M.’s house because he
would play with his cousins, but then stated that B.M.A.J.’s cousins would also come to their
(W.J. and J.S.’s) house to play. J.S.’s testimony, however, contradicted both parents’ contention
that B.M.A.J. did not live with them when she testified that B.M.A.J. was in “his” room when
CPS arrived on the morning of January 7, 2011, to remove him from their home.
J.S. testified that they lost electricity in their house within one month of living there and
were scheduled to move in two days at the time of B.M.A.J.’s removal. She explained that
mattresses were on the floor in the living room because all of their other furniture was at their new
home. J.S. testified that their original move-in date had been delayed because she had not yet paid
the landlord. Finally, J.S. and W.J. testified that they did not have any pets, thus contradicting the
photographs of a dog, cat, animal feces, and pet food inside the home.
Conclusion
After viewing the evidence in the light most favorable to the finding in addition to the
undisputed facts not supporting the finding, a reasonable fact finder could form a firm belief or
conviction that J.S. engaged in conduct or knowingly placed B.M.A.J. with persons who engaged
in conduct that endangered his physical or emotional well being. See In re J.F.C., 96 S.W.3d at
266. B.M.A.J. was first removed from J.S.’s care after suffering from a fractured skull, bruises,
and adult-sized bite marks on his body. After J.S. regained custody of B.M.A.J., CPS had to
intervene a second time to remove B.M.A.J. from endangering conditions. See In re C.L.C., 119
S.W.3d at 392 (unsanitary conditions can qualify as surroundings that endanger a child).
Regardless of whether J.S. inflicted the injuries B.M.A.J. suffered as an infant and young child,
the evidence is legally sufficient to show that J.S. engaged in a continuous course of conduct in
which she again placed B.M.A.J. in conditions or surroundings that subjected him to physical and
emotional harm. See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (extraordinarily unsanitary
conditions jeopardized children’s health and was some evidence to support termination). We
9
conclude the evidence is legally sufficient to support termination of J.S.’s parental rights under
subsection (E).
After viewing the entire record and considering the disputed evidence, a fact finder could
reasonably have formed a firm belief or conviction about the truth of the Department’s
allegations. See In re J.F.C., 96 S.W.3d at 266. Regardless of whether W.J. and J.S.’s residence
was a “temporary stop,” that does not call into question the conditions and surroundings in which
B.M.A.J. was placed while he was in J.S.’s custody. We conclude the evidence is factually
sufficient to support termination of J.S.’s parental rights under subsection (E). Accordingly, we
overrule J.S.’s third issue.
Because we have held that the evidence is legally and factually sufficient to terminate
J.S.’s parental rights pursuant to subsection 161.001(1)(E), we need not address J.S.’s second
issue relating to the sufficiency of the evidence for termination under subsection (D). See TEX. R.
APP. P. 47.1; In re C.C., No. 12-09-00429-CV, 2011 WL 198595, at *6 n.2 (Tex. App.—Tyler
Jan. 19, 2011, no pet.) (mem. op) (when evidence is sufficient to support termination under one
ground, appellate court need not address challenges to other grounds for termination).
BEST INTEREST OF THE CHILD
In her fourth issue, J.S. argues that the evidence is legally and factually insufficient to
show that termination of her parental rights is in B.M.A.J.’s best interest.
Applicable Law
Parental rights may not be terminated merely because a child might be better off living
elsewhere. In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.). The party
seeking termination must prove by clear and convincing evidence that termination of a parent’s
rights to his or her child is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(2).
The prompt and permanent placement of the child in a safe environment is presumed to be in the
child’s best interest. See TEX. FAM. CODE ANN. § 263.307(a) (West 2008). But there is also a
strong presumption that keeping a child with a parent is in the child’s best interest. In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006).
In determining the best interest of the child, the courts consider a number of factors
including (1) the desires of the child; (2) the emotional and physical needs of the child now and in
10
the future; (3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to assist these
individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976). The family code also provides a list of factors to consider
whether a child’s parents are willing and able to provide a child with a safe environment, which
we will consider in conjunction with the above-mentioned Holley factors. See TEX. FAM. CODE
ANN. § 263.307. The applicable statutory factors here include (1) the child’s age and physical and
mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the
magnitude, frequency, and circumstances of the harm to the child; and (4) the results of
psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other
family members, or others who have access to the child’s home. See id. § 263.307(b).
The Department need not prove all of the statutory or Holley factors to prove that
termination is in the child’s best interest. See Holley, 544 S.W.2d at 372; In re J.I.T.P., 99
S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that termination is in the best
interest of the child. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex. App.—Fort Worth 2009, no
pet.). But the presence of scant evidence relevant to each factor will not support such a finding.
Id. Evidence supporting termination of parental rights is also probative in determining whether
termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 28-29.
Analysis
At the time of trial, B.M.A.J. was five years old. Testimony from caseworker Rachel King
and CASA supervisor Joni Lunsford showed that B.M.A.J. typically referred to J.S. by her first
name and seemed indifferent when his visitation periods with J.S. were over. King testified that
she heard B.M.A.J. call J.S. “mom” twice and heard him tell J.S. “I love you” once. J.S.’s sister,
ex-boyfriend, and fiancé all testified that B.M.A.J. referred to J.S. as “mommy” and talked about
how he loved his “mommy.”
B.M.A.J. is a “very energetic” child that requires a “lot of attention and patience.”
Caseworker King testified that B.M.A.J. needs a “strong parent” in his life, and did not believe
11
J.S. was capable of being a strong parent for B.M.A.J. because she has mood swings and does not
show patience with B.M.A.J. CASA supervisor Lunsford testified that B.M.A.J. was placed in an
assessment center due to behavioral issues for approximately ninety days. Upon his release from
the assessment center, B.M.A.J. was placed in a “therapeutic” foster home where he has a “very
structured” home and school environment. Lunsford testified that she did not believe J.S. could
provide for B.M.A.J.’s needs because her relationship with B.M.A.J. is more akin to that of a
playmate rather than a mother. J.S.’s fiancé disagreed with Lunsford’s characterization of J.S.’s
relationship with B.M.A.J. and described her as a “good devoted parent.” W.J. described J.S.’s
relationship with B.M.A.J. as “damn good.”
During the pendency of the case, J.S. lived in at least two different places and never had
stable employment. But by the time of trial, J.S. had obtained employment delivering phone
books, earning approximately three hundred dollars per week in addition to her disability benefits
that total approximately seven hundred dollars a month. J.S. testified that she had been living
with her fiancé for three months by the time of trial and that, if B.M.A.J. was returned, he would
have a stable home because they now live on a street with other families who have children that
also have “ADHD” (attention deficit/hyperactivity disorder). J.S.’s fiancé also testified that if J.S.
was given a third chance, nothing would “happen [because] there’s a bunch of kids in the
neighborhood where we’re living at [and he will] be playing with them all day long.”
Finally, J.S. accepts no responsibility for B.M.A.J.’s removal in either CPS case. J.S.
testified that it was “not [her] fault” either time B.M.A.J. was removed from her care. J.S. blamed
CPS’s involvement in her life on her being “with the wrong man.” J.S. also testified that the
conditions of the house were partly due to the fact that W.J. had not “tak[en] out” the trash and
litter box like he had promised.
Conclusion
After viewing this evidence in the light most favorable to the finding in addition to the
evidence discussed in our review of the termination finding, we conclude that a reasonable trier of
fact could have formed a firm belief or conviction that termination of J.S.’s parental rights was in
B.M.A.J.’s best interest. See In re J.F.C., 96 S.W.3d at 266. After viewing the entire record, we
conclude that the disputed evidence that J.S. had a good relationship with B.M.A.J., that his
removal was “not [J.S.’s] fault,” and the fact that J.S. is engaged and living on a street with other
12
families who have children with ADHD is not so significant to conclude that the fact finder’s
decision was unreasonable. See id. The evidence is legally and factually sufficient to show that
termination of J.S.’s parental rights is in B.M.A.J.’s best interest.6 Appellant’s fourth issue is
overruled.
Because we have held that the evidence is sufficient for termination, we need not address
Appellant’s fifth issue regarding the portion of the trial court’s order appointing the Department
sole managing conservatorship of B.M.A.J. See TEX. R. APP. P. 47.1.
DISPOSITION
Having overruled A.P.’s first, third, and fourth issues, we affirm the judgment of the trial
court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 20, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
6
J.S. cites several cases to support her contention that conduct in the distant past, unless shown to be a
continuing problem is insufficient to support termination. These cases are distinguishable from the facts in the current
case because J.S. had custody of B.M.A.J. for only nine months of his life and, during both periods of custody, J.S.
continuously engaged in conduct that placed B.M.A.J. in endangering conditions. See Ray v. Burns, 832 S.W.2d 431,
435 (Tex. App.—Waco 1992, no writ) (“Past is often prologue.”).
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 20, 2012
NO. 12-12-00225-CV
IN THE INTEREST OF B.M.A.J., A CHILD
Appeal from the 294th Judicial District Court
of Van Zandt County, Texas. (Tr.Ct.No. 11-00010)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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THE STATE OF TEXAS
MANDATE
*********************************************
TO THE 294TH DISTRICT COURT of VAN ZANDT COUNTY, GREETING:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 20th
day of December, 2012, the cause upon appeal to revise or reverse your judgment between
IN THE INTEREST OF B.M.A.J., A CHILD
NO. 12-12-00225-CV; Trial Court No. 11-00010
Opinion by James T. Worthen, Chief Justice.
was determined; and therein our said Court made its order in these words:
“THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the
same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
below be in all things affirmed, and that this decision be certified to the court below for
observance.”
WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court
of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the ______ day of __________________, 201____.
CATHY S. LUSK, CLERK
By:_______________________________
Deputy Clerk
15