COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00042-CV
IN THE INTEREST OF G.J.W. AND
C.W.R. II, CHILDREN
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In three issues, Appellant Mother appeals the termination of her parental
rights to G.J.W. and C.W.R. II. We affirm.
1
See Tex. R. App. P. 47.4.
II. Procedural Background
The trial court terminated Mother‘s parental rights to G.J.W. and C.W.R. II
after finding by clear and convincing evidence that she had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being and that termination of her
parental rights would be in the children‘s best interest.2 See Tex. Fam. Code
Ann. § 161.001(1)(D), (2) (West Supp. 2012). This appeal followed.
III. Termination of Parental Rights
Mother challenges the legally and factual sufficiency of the evidence to
support the trial court‘s endangerment and best interest findings and the trial
court‘s decision to appoint the Department of Family and Protective Services
(DFPS) as G.J.W.‘s sole managing conservator.
A. Standards of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child‘s
right to inherit. Id. § 161.206 (West 2008); Holick v. Smith, 685 S.W.2d 18, 20
(Tex. 1985). Consequently, ―[w]hen the State seeks to sever permanently the
relationship between a parent and a child, it must first observe fundamentally fair
2
The trial court terminated the rights of G.J.W.‘s alleged father, R.A.M.,
who does not appeal. The trial court appointed C.R., C.W.R. II‘s father, as
C.W.R. II‘s possessory conservator.
2
procedures.‖ In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v.
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)). We strictly
scrutinize termination proceedings and strictly construe involuntary termination
statutes in favor of the parent. Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Due process demands
this heightened standard because ―[a] parental rights termination proceeding
encumbers a value ‗far more precious than any property right.‘‖ E.R., 385
S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397); In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d 611, 616
(Tex. 2007) (contrasting standards for termination and conservatorship).
Evidence is clear and convincing if it ―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).
In proceedings to terminate the parent-child relationship brought under
family code section 161.001, the petitioner must establish one ground listed
under subsection (1) of the statute and must also prove that termination is in the
best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Both elements must be established; termination may not be based solely
on the best interest of the child as determined by the trier of fact. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d
625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh‘g).
3
In evaluating the evidence for legal sufficiency here, we must determine
whether the evidence is such that a factfinder could reasonably form a firm belief
or conviction that section 161.001(1)(D), the endangerment-by-environment
ground, was proven and that termination of Mother‘s parental rights was in the
children‘s best interest. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder
could have done so. Id. We disregard all evidence that a reasonable factfinder
could have disbelieved. Id. We consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder‘s determinations as long as they are not unreasonable. Id. at
573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder‘s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that Mother
violated section 161.001(1)(D) and that the termination of the parent-child
4
relationship would be in the children‘s best interest. Tex. Fam. Code Ann.
§ 161.001(1)(D), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Evidence
Mother has three children—M.W.,3 G.J.W. (born April 19, 2004), and
C.W.R. II (born March 29, 2006)—a history of methamphetamine use,4 and a ten-
year history with Child Protective Services (CPS). DFPS filed the petition in this
case on July 7, 2011, the day after Mother was arrested for outstanding warrants.
Mother, C.W.R. II‘s father C.R., and C.R.‘s fiancee Selena5 appeared at
the July 27, 2011 show cause hearing, and the trial court ordered them to
undergo drug testing. Mother tested positive for methamphetamine in numbers
3
M.W. is around nine years old. Mother told the CPS investigator in this
case that M.W.‘s father had custody and that Mother was not allowed to visit
M.W. without submitting to a urine drug screen. Mother testified that she had
joint custody of M.W. but that the last time she had seen her was ―[r]ight before
the boys went into foster care‖ because she and M.W.‘s father had verbally
agreed that it would be best for her not to see M.W. ―until this situation [with
G.J.W. and C.W.R. II] is handled.‖ Mother said that she called M.W. every
Wednesday at seven o‘clock.
4
Mother started using methamphetamine when she was twenty-nine or
thirty years old; she was forty-one years old at the time of the trial.
5
We use pseudonyms for the names of any caregivers and family
members, to protect the children‘s identities. See Tex. R. App. P. 9.8 & cmt.
5
indicating daily use over the preceding three-month period.6 C.R. tested positive
for marijuana.
1. Mother
Elizabeth Pratt, a CPS investigator, testified that Mother‘s CPS history
began in March 2003 with an allegation of physical abuse of M.W. and that her
CPS history included at least seven referrals involving methamphetamine use.
Pratt recited that Mother had a June 2003 referral of neglectful supervision
of M.W. involving methamphetamine; a November 2004 referral for physical
neglect of G.J.W.; and two referrals in June 2005 for physical abuse, physical
neglect, and neglectful supervision of G.J.W.7 CPS received another referral in
April 2006, alleging that Mother was a domestic violence victim because she had
been seen with a black eye and a bruise on her arm. In November 2009, a
referral for neglectful supervision of G.J.W. and C.W.R. II and physical abuse of
G.J.W. by Mother was reported when G.J.W. went to school with a bruised right
cheek. In October 2010, CPS received two referrals about G.J.W. and C.W.R. II,
6
Jim Turnage, the president and owner of the drug-testing company
testified, and Petitioner‘s Exhibit 1 shows, that Mother‘s July 27, 2011 hair strand
drug test results showed a methamphetamine level of 35,942 picograms and an
amphetamine level of 5,597 picograms. Turnage explained that anything above
7,500 picograms for methamphetamine was considered chronic or daily use.
7
The June 21, 2005 referral indicated that ―people had seen the baby in the
room with drug use and that there were concerns that smoke was being put in
the baby‘s face, and also bruises seen on the child.‖ This referral resulted in the
opening of a family-based safety services (FBSS) case. Mother completed her
service plan in that case.
6
alleging neglectful supervision by Mother and Danny M. and physical abuse by
Mother. In February 2011, another referral for neglectful supervision and
physical neglect of G.J.W. and C.W.R. II and physical abuse of G.J.W. by Mother
was reported. The referral included allegations that Mother was selling her food
stamps for drugs, using methamphetamine daily, and using drugs in front of the
children. Pratt acknowledged that all of these earlier referrals had been
classified ―unable to determine‖ or ―ruled out.‖
Pratt received a referral involving G.J.W. and C.W.R. II on May 25, 2011,
based on some concerns about Mother‘s behavior when she brought C.W.R. II to
the emergency room at Cook Children‘s Hospital after he had been hit by a car.
Pratt stated, ―The reporter from the hospital indicated that they [sic] had concerns
that [Mother‘s] behavior was erratic, and they were concerned about drug use.‖
Pratt visited Mother the next day at the home of one of Mother‘s friends,
where Mother had been living with the children. Mother told Pratt that the
children had been outside playing in the grassy area near the driveway. She had
been inside, preparing the boys‘ lunches, when a visitor‘s car struck C.W.R. II.
When asked why the children were not in school, Mother told Pratt that she was
home-schooling them. Mother also told Pratt that the living arrangements were
temporary and that she was working on getting a job and moving. 8 When Pratt
asked Mother to sign a safety plan stating that the children would not be
8
Mother did not provide Pratt with an address of where she might be
moving.
7
unsupervised at any time, Mother refused, telling Pratt that she would not sign
anything without a lawyer‘s advice. The referral was ruled ―undetermined.‖
On May 31, 2011, Pratt received another referral, this one stating that
Mother had threatened in a text to kill herself because she had failed her
children. Pratt attempted to respond to the referral, but Mother had moved
without a forwarding address. Mother called Pratt on June 1 and told her that
she and the boys were staying at a Motel 6, that she had been having car
trouble, and that she had sent a text to someone but had never threatened to kill
herself. Pratt met Mother at the motel. Mother told Pratt that the motel was
temporary because she had a friend who had offered her and the boys a place to
stay until Mother could ―get back on her feet and get a job.‖ CPS helped Mother
with financial assistance to get her truck fixed. Mother took the information Pratt
gave her about housing resources but indicated that she wanted to stay in the
Haltom City area because that was where her friends and support were and that
she was not willing to go out of the area for shelter. Pratt acknowledged that the
boys looked healthy when she saw them at the motel.
Pratt said that after the initial meeting at the motel, she was unable to
reach Mother until she received a third referral on July 6, 2011, when the Haltom
City police arrested Mother.
Haltom City Police Officer Caleb Haynes testified that at 5:30 p.m. on July
6, 2011, he responded to a call at a gas station for a welfare check on a woman
and two boys who had been in the cab of a truck next to some of the gas station
8
pumps for around an hour during the hottest part of the day. Officer Haynes
made contact with the driver, Mother.
Officer Haynes said that although both of the truck‘s windows were rolled
down, the truck‘s cab was stifling, and the boys and Mother were sweating
profusely. He could see no water in the truck, and the children‘s faces were red
and flushed.9 Officer Haynes said that he and his partner asked if they could get
the boys out of the truck and get them some shade and some water, but Mother
―adamantly refused,‖ even though at one point she told them that she felt like she
was going to pass out. Officer Haynes testified that Mother did not seem
concerned about the children even though, in his opinion, they were in
substantial danger from the heat. Officer Haynes‘s partner ultimately went into
the gas station and got water for the boys. Officer Haynes said that when the
officers gave the water to them, the boys ―gulped it down ferociously.‖
Officer Haynes asked Mother to identify herself, and ―[e]ventually, with
some doing,‖ she tossed her wallet to him. Mother did not have her driver‘s
license, but her wallet had a debit or credit card with her name on the front of it,
and she eventually gave him her date of birth. Officer Haynes described Mother
as rude and dismissive and said that she avoided making eye contact with him.
He also said that Mother ―couldn‘t really stop shaking or moving‖ throughout the
encounter, stating that Mother‘s hands, legs, and arms were shaking; that she
9
Officer Haynes stated that the boys appeared clean although they were
sweating and lethargic.
9
moved back and forth and was very jittery; and that she seemed paranoid.
Based on his experience, he thought that methamphetamine use might be
involved.
After Officer Haynes and his partner learned that Mother had multiple
outstanding warrants for class C traffic tickets, they arrested her. Officer Haynes
testified that when he told Mother that she was under arrest, Mother started
yelling, cursing, and screaming at him and the other officer. She flailed about,
kicking, cursing, and spitting, and he and the other officer had to ―take her to the
ground‖ before handcuffing her and placing her into the patrol vehicle.
Mother agreed that she was in her truck with the boys at a Haltom City
convenience store on July 6. She explained, ―My truck had broken down—or we
ran out of gas and when it ran out of gas you‘d have to let it cool off so we
were—me and the boys were back and forth between the store and going back
outside trying to start the truck.‖ Mother said that Officer Haynes‘s testimony was
incorrect, that she had bought several bottles of Gatorade, and that she and the
children had already finished them and thrown them in the trash before the officer
arrived.
Officer Haynes transported Mother to the police department, and his
partner transported the children. At the police department, CPS was notified,
and Mother was charged with resisting arrest. Pratt received the referral and
went to the police station, but she was unable to speak with Mother that day. An
officer told her that because Mother had been out of control—kicking, screaming,
10
cussing, and biting—they had had to place her in restraints. CPS placed the
children with a foster family when Pratt was unable to contact either of the
children‘s fathers.
Pratt testified that in light of Mother‘s positive July 27, 2011 drug test
results, she had concerns about the children‘s environment and believed that
they were in a dangerous environment with Mother based on the neglectful
supervision from the 2011 referrals, the 2011 trip to the emergency room, the
possible drug use, the positive drug test, Mother‘s frequent changes of address,
Mother‘s lack of any personal items for the children, and her failure to enroll the
boys in school, as well as Mother‘s extensive CPS history prior to May 2011.
Pratt also testified that Mother‘s CPS referrals from 2003 to 2011 ―were reports
from hospitals, friends, neighbors, family members. It‘s never the same person.
And that does show that there would be something that is substantially wrong in
the family,‖ even though none of the referrals prior to Pratt‘s receiving the case
had been found ―reason to believe.‖ Pratt further testified that Mother‘s CPS
history reflected many different addresses and that stability is a concern for
children, particularly those of school age, because they need a routine, parental
supervision, and a sense of security.
Tashani Fernandes, the children‘s CPS caseworker since August 11,
2011, testified that she had set up the following services for Mother: a
psychiatric evaluation to evaluate Mother‘s mental health based on the May 31,
2011 referral CPS had received about Mother‘s alleged suicide comment;
11
counseling; parenting classes; and a drug and alcohol assessment. Mother also
had visits with the children every two weeks,10 and she was asked to comply with
random drug testing and to provide paycheck stubs as proof of employment.
Paula Shockey, a licensed chemical dependency counselor at Recovery
Resource Council (RCC), testified that she saw Mother on November 1, 2011,
after receiving a referral for her from CPS for a drug and alcohol assessment.
Mother told her that she had not used anything since July 2011, when she had
used methamphetamine twice.11 Mother also told Shockey that she had not
worked for two weeks because she had been ill and unable to clean houses
during that time and that she was living with a friend because she was homeless.
Shockey testified that if an individual says he or she has not used drugs in
the last thirty days, that individual does not qualify for state-funded residential
treatment, so she referred Mother to the CPS Roads of Information Education
class and to Union Gospel Mission for housing assistance.12 Shockey was
unaware that Mother had subsequently gone to a twenty-eight-day residential
treatment facility but said that the State would allow an individual to go directly to
10
Mother said that she thought she had only missed three visits.
11
Shockey stated that all of the information Mother gave her was self-
reported and that RCC did not do drug testing. Mother stated in her paperwork
that it had been five years since her last marijuana use and four months since
her last methamphetamine use.
12
Mother told Shockey that she wanted to go to residential treatment, but
Shockey told her that she did not meet the criteria based on Mother‘s statement
that she had not used methamphetamine since July 2011.
12
a provider and request entrance, ―and it would be whatever they told that
program about whether or not they got into that program.‖ Shockey said that the
Pine Street facility that Mother went to used recent drug use as a criterion.
Sarah Sanders, a licensed chemical dependency counselor, testified that
Mother had been one of her inpatient clients at the Pine Street location of MHMR
of Tarrant County. Mother, who reported to Sanders that she was homeless,
stayed for the full twenty-eight days of treatment, from November 10, 2011, to
around December 7 or 8, 2011, and met the minimum requirements, but Sanders
said that, clinically, ―there was still more stuff she could work on.‖ Mother was
discharged because she was very resistant to staying longer than the twenty-
eight days. Sanders noted in Mother‘s discharge paperwork, ―In the past week
client demonstrated the belief that she knows what is best for her recovery and it
does not matter what others recommend for her.‖ Sanders‘s recommendations
to Mother were that she complete an outpatient program, attend aftercare, attend
ninety NA and AA meetings in ninety days, avoid game rooms, speak with her
sponsor daily, seek employment, and obtain stable housing. Sanders said that if
Mother failed to follow the discharge recommendations, her prognosis for
remaining drug-free was very poor and that a relapse by Mother would not be
surprising because ―[i]t takes a large effort to stay sober and if you‘re not going to
meetings and working your steps and working with a sponsor, it‘s a difficult thing
to do.‖ Mother‘s December 15, 2011 drug test was positive for
methamphetamine.
13
In addition to the July 27, 2011, and December 15, 2011 drug tests, the
trial court ordered Mother to take a drug test on January 4, 2012. Mother did not
comply. She also did not comply with the trial court‘s order to take a drug test on
May 14, 2012, and she refused to take a drug test at the CPS office on May 29,
2012. Mother‘s June 26, 2012 and September 6, 2012 drug tests were positive
for amphetamine and methamphetamine. Turnage, the drug test witness,
testified that Mother‘s September 6, 2012 drug test results showed almost double
the amounts for methamphetamine and amphetamine from her July 27, 2011
results. Mother invoked her Fifth Amendment privilege not to testify when asked
to explain why she had tested positive for methamphetamine; she agreed that
she had used methamphetamine since completing in-patient rehab in December
2011 but did not remember the date of her last methamphetamine use.
Fernandes stated that based on Mother‘s drug test results, she believed
Mother had continued to use illegal drugs, presenting a dangerous environment
for her children. Fernandes said that Mother had not told her that she had done
any aftercare or outpatient drug treatment after finishing rehab at Pine Street
although Mother provided her with a sign-in sheet for AA and NA meetings in
August 2011.
Mother testified that she had been to three sessions of Pine Street‘s
aftercare in December 2011. Mother also said that she attended NA meetings no
less than twice a week and that she had been going to NA for a year, and ―pretty
steady two, three times a week since June, July.‖ Mother also said that she was
14
currently seeking another treatment facility and that she was on waiting lists for
the Salvation Army, Union Gospel Mission, Nexus, and VOA Light.
Over the course of the seventeen months that the case was open, Mother
did not provide any paycheck stubs or other kind of income statement. Mother
explained that she was paid in cash for her housecleaning job and that she had
not filed her 2011 income tax statement because she was not sure if she was
able to file with the children on there. Mother said that she could clean one
house a day, that she cleaned no less than five houses per week, and that she
made $50 to $75 per house. As she had no vehicle, Mother had to get a ride to
the houses that she cleaned and to her CPS services.
Mother agreed that C.R. had been paying her $51 per week in child
support during the pendency of the case and said that she had spent the money
on the children, using most of it to replace the children‘s things that had been lost
in storage.13 Mother said that she had bought remote-controlled helicopters for
the boys using C.R.‘s child support money but said she did not write down what
else she had bought for them and did not keep any receipts. Mother agreed that
she had not given any of the child support money to the foster parents.
Mother refused to undergo a psychiatric evaluation, telling Fernandes that
she thought it was a violation of her constitutional rights, but she completed her
13
The trial court took judicial notice of its temporary order from July 27,
2011, in which it had redirected C.R.‘s child support obligation to DFPS.
15
parenting classes during her inpatient drug rehab.14 Fernandes set up
counseling for Mother four times—in August 2011, May 2012, August 2012, and
September 2012—but Mother never completed this service. Debbie Boyles, a
licensed professional counselor, testified that CPS referred Mother to her for
weekly counseling in August 2011 but that they were unable to schedule an
appointment until October 5, 2011, because of difficulty communicating with
Mother via the phone numbers that Mother had provided to CPS. Mother failed
to appear at her October 5 appointment, but she appeared for the rescheduled
appointment on October 12.
At the October 12 appointment, Mother told Boyles that she had problems
with drugs; Boyles said that Mother seemed receptive to working on parenting,
stability, and sobriety. However, Mother did not appear at the appointment that
they scheduled for October 19,15 and Boyles did not see Mother again until over
a year later, on November 15, 2012.
When Boyles saw Mother in November 2012, Mother told her that she had
voluntarily gone to rehab, had been to parenting classes, had been ―clean‖ since
November 2011, had moved to Dallas and moved back, and was about to move
again before Thanksgiving. Mother cancelled her appointment on November 19
14
Mother testified that she had also had parenting classes before and that
she thought those had also been through CPS.
15
Mother did not remember why she did not go to the October 19, 2011
counseling appointment.
16
because of her house-cleaning job, and although they rescheduled the
appointment for November 26, the week before the termination trial began on
December 3, 2012, Mother again failed to appear.16 Boyles said that one
counseling appointment a year was insufficient to make any real progress.
Mother agreed that she only went to counseling twice.
Mother said that between July 2011 and December 2012, she had lived in
North Richland Hills, Haltom City, Dallas, and Fort Worth. Fernandes testified
that she received another address for Mother at the permanency hearing in
September 2012. Fernandes visited that address three days before the trial
began in December because she wanted to see if it would be appropriate for the
children and to see if Mother actually lived there. Fernandes said that Mother
was not there when she arrived but that she spoke with someone at the address
who told her that Mother did not live there and that Mother had moved out a
month before. As of the time of the trial, Fernandes did not know where Mother
was living.
Mother testified that she had just signed a lease on an apartment in Fort
Worth on November 28, 2012, and before that, she had stayed in a ―weekly
apartment/hotel-type unit‖ after she moved from the Haltom City house where
she had rented a room. Mother rented the room in Haltom City in March 2012,
16
Mother said that she did not go to the November 26, 2012 appointment
because she had to work and because of transportation problems—her driver‘s
license was suspended, she did not have a car, and she relied on her friends to
drive her to work and appointments.
17
and before that, she had rented a room in Dallas from December 2011 to March
2012. Before that, she had lived in North Richland Hills for several months to a
year, and before that, she had lived in Hurst. Mother had spent ―a few nights or
maybe a week‖ at Motel 6 when the CPS investigation began.
2. C.R.
Pratt spoke with C.R., C.W.R. II‘s father, after the children were placed in
foster care. C.R. told Pratt that Mother moved around a lot and that he did not
know how to get in touch with her and the children. C.R. also told Pratt that
during his relationship with Mother ―there was a little of [sic] partying and drug
use,‖ that he had used marijuana in the past, and that Mother had used
methamphetamine in the past.17 C.R. said that his last use of marijuana had
been in either June or July 2011 but he had not used any illegal drugs since then,
that he had to take—and had passed—random drug tests at work, and that he
felt he had matured in the last four or five years.
Mother said that when she had started seeing C.R.—around her thirty-third
birthday—he told her that he was twenty-six, but she learned his real age from
his mother on his eighteenth birthday. C.R. had a possession of a controlled
substance case from 2005, which he said was when he was ―an eighteen year
old kid.‖ He went on probation for the offense. Mother testified that during her
17
At trial, C.R. acknowledged that he had used methamphetamine with
Mother but said that he did not use it now. He stated that his last
methamphetamine use had been four or five years before.
18
pregnancy with C.W.R. II, she and C.R. got into an argument, C.R. hit her more
than once,18 and one of their friends called the police. Mother said that she later
signed an affidavit of nonprosecution because C.R. was on probation and she did
not want him to go to prison, but C.R. said that Mother had lied when she had
accused him of assault.
C.R. testified that he had completed all of his CPS services and had been
paying child support for C.W.R. II since June 2007. He had been an assistant
general manager at Taco Cabana for five years and explained that he was late in
completing his CPS services because he had been working six to six-and-a-half
days a week while his restaurant was short-staffed and because of some family
crises: his father had just passed away, and his mother had liver cancer. C.R.
said that he had a four-bedroom home, which he bought after his father died, and
that he was receiving his own restaurant the week after trial.
C.R. said that he worked between forty and fifty hours per week and that
Selena would take care of C.W.R. II when he was not home, as she took care of
her son and the son that they had together. He and Selena planned to marry as
soon as they could save up the money. C.R. said that if he were awarded
possession and later full conservatorship of C.W.R. II, Selena wanted to adopt
the child if Mother‘s parental rights were terminated.
18
Mother said that C.R. had hit her somewhere on her body but she did not
remember where.
19
C.R. said that he loved G.J.W. as a child but not as a son. In 2009, when
C.R. fell in love with Selena and wanted to settle down and start a family, he
stopped seeing G.J.W. because he had other family to take care of and he felt
that was the right thing to do because G.J.W. was not biologically his. Then
Mother stopped letting him see C.W.R. II, telling him that he could not see
C.W.R. II unless he also saw G.J.W. C.R. complained that it was difficult to
contact Mother because ―[s]he was moving around from place to place[,] from
boyfriend to boyfriend.‖ C.R. had to see his son at C.R.‘s mother‘s house,
because Mother would still let C.R.‘s mother see the child. C.R. said that when
the boys would come over to his mother‘s house, they would be wearing clothing
that he did not approve of, so he would ―get them dressed right and send them
back home.‖
C.R. said that while C.W.R. II had never lived with him, C.R. had a court
order for every other weekend ―and holidays and things but [he] was getting
[C.W.R. II] more often than that,‖ because anytime Mother needed to do things or
wanted a babysitter, he always took the boys. C.R. said that he wanted C.W.R.
II to come live with him ―[m]ore than anything‖ and that he wanted for C.W.R. II to
continue to have a relationship with G.J.W., through either monthly visits or visits
every weekend. He also said that he and the foster family lived nearby and that
he had become really close with the foster parents during the case. C.R. said
that C.W.R. II had a good relationship with his two-year-old half-brother, as well
as Selena‘s nine-year-old son.
20
3. Selena
Selena, who had been in a relationship with C.R. since February 2009,
testified that they saw C.W.R. II every weekend until Mother stopped dropping
him off at C.R.‘s mother‘s house. Selena said they wondered what was going on
but could not find Mother to ask her.
Selena had a single encounter with CPS in 2007 or 2008 when her
boyfriend at the time threw her stuff and her son‘s stuff into the swimming pool.
Her son was not present because he was living with his father in San Antonio at
the time, and after CPS talked with her son‘s father, ―it was cleared.‖ Selena had
completed probation for a DWI that had occurred during the same time period,
but she did not have her driver‘s license back because she owed around $1,500
in fines. Selena and C.R. were budgeting to pay the fines with their income tax
return in February, and C.R. and Selena‘s mother were driving the children until
then. However, Selena also acknowledged that she sometimes drove when she
had to.
Selena was a stay-at-home mother but planned to go to work after she
completed her education. She said that their house had room for C.W.R. II and
that her boys were ready for him to move in. She and C.R. planned to get
married, and she was willing to adopt C.W.R. II.
4. Camilla
Camilla testified that she was G.J.W. and C.W.R. II‘s foster mother. In July
2011, the boys were placed with her, her husband, and their teenaged son in the
21
house where the family had lived for over eight years. By the time of the trial,
G.J.W. and C.W.R. II had lived with the foster family for seventeen months and
were eight years old and six years old, respectively. Camilla said that they had
learned of G.J.W.‘s bed-wetting issue on the first night that he was with them and
that both boys had dental problems: C.W.R. II had to have a root canal and two
cavities filled, and G.J.W. had four cavities and had to have a tooth extracted
because the root was protruding through his top gum.
Camilla testified that when the boys moved in, she asked them what kind
of food they liked to eat, and they told her bologna and catsup sandwiches.
Camilla started feeding them more balanced meals.
When school started in August 2011, although G.J.W. was supposed to
enter the second grade, they were unable to locate school records to show that
he had completed the first grade.19 G.J.W. told Camilla that he had only
attended a couple of weeks of first grade, so he was placed back in first grade
again, where he struggled with reading.20 Camilla testified that after completing
the first grade, G.J.W. was still somewhat behind in reading and spelling but that
he had caught up on math and science; he was in the second grade at the time
19
G.J.W. did not know the name of his school.
20
Mother testified that she had enrolled G.J.W. in first grade at Richland
Hills Elementary and that she was aware of his reading problems because she
had had a conference with his teacher. Mother said that she had seen the
teacher daily because she took G.J.W. and C.W.R. II to school and picked them
up.
22
of the trial. By the time of the trial, C.W.R. II had completed kindergarten and
started the first grade. Other than sometimes writing his letters backwards, he
was able to read fairly well and was on-target according to his teachers. Camilla
said that the boys got along very well with other children.
Camilla described the family‘s activities, including eating at a restaurant on
weekends, going to the movies and the park, swimming in the summer, going to
children‘s church, and traveling to visit extended family. She testified that the
boys enjoyed these activities and that they fit very well into the family. She
described G.J.W. as ―a very cheerful, happy little boy,‖ and she said that he had
told her that he wished Mother had played with him more but that she slept a lot.
Camilla said that if G.J.W. and C.W.R. II became available for adoption, she and
her husband wanted to adopt them.
Camilla testified that she and her husband had met C.R., had developed a
relationship with him, and had a plan in place so that if C.W.R. II went with C.R.,
the children could maintain contact. She stated, ―We would like to extend
continuing to take [C.W.R. II] to church, if that was at all possible, because he
does like it so much. We‘d also like to have at least monthly, or biweekly visits
over the weekend‖ and play dates. Camilla stated, ―I think if [G.J.W.] never saw
[C.W.R. II] again, I think that would be heartbreaking for him.‖ C.W.R. II had told
Camilla that he enjoyed his visits with his father and his two-year-old half-brother.
Camilla stated that if C.W.R. II went with C.R. while G.J.W. stayed with the
foster family, her plan was to adopt G.J.W. and for both children to have therapy
23
to ensure that the transition went well. She testified that even if the trial court did
not terminate Mother‘s parental rights, she was willing to maintain the children in
her home long-term and that if the trial court gave custody of C.W.R. II to C.R.,
the child could stay with her through the end of December so he could finish the
school semester.
5. Environment
When asked whether caring for children and using methamphetamine
placed the children in a dangerous environment, Sanders, the licensed
professional counselor who had worked with Mother at Pine Street, stated,
―While you‘re on methamphetamine, it makes it difficult to appropriately supervise
your children. Plus, when you‘re in that culture[,] you are more subject to
dangerous activities than someone who does not use illegal drugs.‖ Sanders
also agreed that multiple moves would not indicate a stable environment for
children. Pratt, the CPS investigator, also testified that when parents are using
drugs, they are distracted and not able to be appropriate parents for their kids.
When asked whether her children were safe with someone who is using
methamphetamine, Mother replied, ―I don‘t really know how to answer that
question.‖ When asked the same question again, however, Mother replied, ―No,
not while the person is on methamphetamines with them, no.‖
Fernandes testified that she did not recommend returning the children to
Mother because Mother continued to test positive for illegal drugs and had not
completed her individual counseling. She also said that because Mother had
24
moved around so much, CPS did not know where Mother was living and did not
know if her home was appropriate for the children. Fernandes further explained
that Mother had not shown a willingness and ability to care for her children and
that it was not fair for the children to continue to wait for Mother to get her life
together because they needed permanency.
C.R. agreed that Mother had raised C.W.R. II from birth, that he never saw
any evidence of abuse or neglect, and that he had never tried to obtain custody,
but he also stated that he believed that it was in C.W.R. II‘s best interest to live
with him. He agreed that a child is placed in a dangerous environment when he
is raised by someone who is using methamphetamine and that if Mother had
been using methamphetamine, she had placed C.W.R. II in a dangerous
environment. C.R. testified that he had suspected that Mother had been using
methamphetamine while raising C.W.R. II, that he was concerned at the time,
and that he felt remorse for having done nothing about it.
6. Best Interest
Fernandes stated that G.J.W. appeared to be bonded to Camilla and
called her ―Mom,‖ and that he appeared to be happy in the foster home. She
testified that G.J.W. and C.W.R. II were bonded but that it was in C.W.R. II‘s best
interest to be returned to his father, although it would also be important to
maintain the sibling relationship between G.J.W. and C.W.R. II. Fernandes said
that, subject to the trial court‘s approval, CPS would start C.W.R. II with overnight
visits with C.R. on the weekends so that C.W.R. II could finish school until
25
Christmas break and then start at a new school in C.R.‘s area in January.
Fernandes said that C.R. finished his CPS service plan,21 that C.R.‘s home was
appropriate, that C.W.R. II had a half-brother who lived with C.R. and Selena,
and that C.R. had a stable job.
Fernandes recommended terminating Mother‘s parental rights to the
children as in the children‘s best interest and explained that if the trial court
terminated Mother‘s parental rights, C.W.R. II would be placed with C.R., and
G.J.W. would be adopted by his foster family. Fernandes stated that as long as
CPS was involved with the children, CPS would ensure that G.J.W. and C.W.R. II
continued contact and that, based on her dealings with the foster family and
C.R., she believed they would also continue the children‘s relationship.
Mother testified that she should have her children back ―[b]ecause they‘re
[her] children and they‘ve been with [her] other than the seventeen months
they‘ve been in foster care,‖ and because ―there‘s been no proof that they‘ve
been abused, neglected, unloved. There‘s no proof of drugs. No criminal
history.‖ Mother amended her answer to state that there was no proof of drugs
―[o]ther than the last seventeen months.‖ Mother said that she felt she took good
care of the boys, that she had never hurt them, and that all of their immunizations
were up to date. Mother agreed that her children should not have to wait at all
21
CPS asked C.R. to complete individual counseling, parenting and
fatherhood classes, and random drug testing and to maintain stable housing and
employment. All of C.R.‘s drug tests were negative except for the initial July 27,
2011 test, which was positive for marijuana.
26
for her to get everything together for them. Mother testified that she did not want
the boys to be separated and that she had concerns about Selena‘s methadone
use,22 but she said she had no objections to C.R. as a father.
C.R. agreed with CPS‘s plan for C.W.R. II to stay with the foster family until
the end of the semester and said that if the trial court felt that it was in C.W.R. II‘s
best interest to remain in the same school as G.J.W., he would make that work
too. C.R. said that he was a hands-on caregiver and helped with the cleaning,
cooking, and childcare and that Selena would help him, as well as Selena‘s
mother and his mother. C.R. asked the trial court to place C.W.R. II with him and
said that he was in agreement with DFPS‘s request to terminate Mother‘s
parental rights to C.W.R. II. He said that C.W.R. II was bonded with Selena and
that the entire family—he, Selena, C.W.R. II, and the other two children in the
home—were all attending family counseling together and had been doing so for
eight weeks.
James, Mother‘s biological father, testified that he was willing to take the
children. However, he also testified that he did not know about G.J.W. and
C.W.R. II until the week before trial because after he and Mother‘s mother
divorced in 1975, he did not see Mother until 1993. 1993 was also the last time
that James had had contact with Mother until the Friday before trial because he
22
Selena testified that when she was pregnant, she had been prescribed
Vicodin and had become addicted to it. Her doctor prescribed methadone to
treat the Vicodin addiction, and she had been taking it for two years, stating that
she was ―coming off of [the methadone] as fast as they let [her].‖
27
could not find her. James said that he did not have any CPS history, that he was
retired, and that he owned a two-bedroom trailer twelve miles outside of
Huntsville. Mother told James that her mother would not help her.
The children‘s ad litem attorney, Karmen Johnson, reported that she had
seen visits between Mother and the children and C.R. and the children. She had
visited C.R.‘s home but not Mother‘s because she had never received an
address to check on Mother‘s home. She visited with the children and said there
was no question that the boys loved both Mother and C.R. Johnson further
stated,
The boys have indicated to the foster parents and to the
caseworker that they wish their mom could live like they live. And I
think that‘s very telling for these boys.
Much as I hate to split siblings . . . [C.W.R. II‘s] father has
done everything that‘s been requested of him to do in order for this
child to live in his home. I think it would be a disservice to [C.W.R. II]
not to allow him to have his father in his life on a full time basis.
Johnson added that it seemed apparent from the foster parents, the caseworker,
and C.R. that sibling contact was something that everyone was interested in
maintaining, and she noted that the problem throughout the case had been
Mother‘s lack of cooperation. Johnson stated that the only way she could see for
the boys to have stability and permanency in their lives was to terminate Mother‘s
parental rights to them.
28
C. Endangerment
In her first issue, Mother argues that the evidence of endangerment is
legally and factually insufficient because DFPS relied on her difficulty in finding
appropriate housing and her relapse into drug use while offering no evidence that
the children were emotionally or physically endangered under their existing living
conditions.
Endangerment is defined as exposing to loss or injury, to jeopardize. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also
Tex. Fam. Code Ann. § 161.001(1)(D). Under subsection (D), we must examine
evidence related to the children‘s environment to determine if it was the source of
endangerment to the children‘s physical or emotional well-being. D.T., 34
S.W.3d at 632. It must be the environment itself that causes the children‘s
physical or emotional well-being to be endangered, not the parent‘s conduct, and
there must be proof that the parent was aware of the potential for danger to the
child in such an environment and disregarded the risk. In re C.D.E., 391 S.W.3d
287, 296 (Tex. App.—Fort Worth 2012, no pet.). However, although the focus of
subsection (D) is on the children‘s living environment and not the parent‘s
conduct, the parent‘s conduct may produce an endangering environment.
Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied). Illegal drug use by a parent supports the conclusion that the child‘s
surroundings endanger his or her physical or emotional well-being. See In re
I.C.W., No. 02-12-00226-CV, 2013 WL 173746, at *3 (Tex. App.—Fort Worth
29
Jan. 17, 2013, no pet.) (mem. op.); see also In re M.R., 243 S.W.3d 807, 819
(Tex. App.—Fort Worth 2007, no pet.) (holding that the evidence was legally and
factually sufficient to support termination under subsections (D) and (E) when the
evidence showed that Mother exposed her children to domestic violence, placed
them in an environment of drug use, and refused to participate in her CPS
service plan). Subsection (D) permits termination based on a single act or
omission, and conduct that demonstrates awareness of an endangering
environment is sufficient to show endangerment. See Tex. Fam. Code Ann.
§ 161.001(1)(D); Jordan, 325 S.W.3d at 721.
Here, Mother‘s July 27 drug test results reflected that she had been using
methamphetamine for the three months prior to the test, which would have been
May, June, and July. During that time, CPS received three referrals about her.
The first, on May 25, indicated that Mother‘s behavior when she took C.W.R. II to
the hospital appeared erratic and might be related to drug use. The second, on
May 31, involved a text by Mother that allegedly mentioned suicide, and the third,
on July 6, reported Mother‘s arrest after her encounter with Officer Haynes.
Officer Haynes testified that Mother‘s behavior—including her inability to stop
moving around—made him think that methamphetamine might be involved, and
in November, Mother told Shockey, the RCC counselor, that her last
methamphetamine use had been in July. When asked whether her children were
safe with someone using methamphetamine, Mother ultimately acknowledged
that they were not. Based on this evidence, we conclude that the trial court could
30
have reasonably formed a firm belief or conviction that Mother had endangered
the children by knowingly placing or knowingly allowing the children to remain in
conditions or surroundings that endangered their physical or emotional well-being
under subsection (D), and that the evidence is therefore legally sufficient to
support the finding. We overrule this portion of Mother‘s first issue.
Further, Sanders and Pratt both testified that using methamphetamine
makes it hard to appropriately supervise or parent children, and over the course
of the case, Mother continued to test positive for drugs, including right after
leaving inpatient drug treatment. C.R. agreed that a child is placed in a
dangerous environment when raised by someone who uses methamphetamine
and that he had suspected Mother had been using methamphetamine while
caring for C.W.R. II. Mother‘s erratic behavior also manifested itself in her
continuous relocation from place to place and her refusal, according to Officer
Haynes, to let her children out of a stifling truck parked at a gas station in July,
even though she told him that she felt like she might pass out. Giving due
deference to the trial court, it could have reasonably formed a firm conviction or
belief that Mother had not only endangered the children‘s physical or emotional
well-being under subsection (D) before the CPS case began but also that Mother
would continue to do so. Therefore, we conclude that the evidence is also
factually sufficient to support the trial court‘s finding, and we overrule the
remainder of Mother‘s first issue. See In re A.H., No. 02-06-00064-CV, 2006 WL
2773701, at *3 (Tex. App.—Fort Worth Sept. 28, 2006, no pet.) (mem. op.)
31
(noting that stability and permanence are paramount in the upbringing of
children, that an endangering environment can be created by a parent‘s
involvement with methamphetamine, and that a factfinder may infer from past
conduct endangering the children‘s well-being that similar conduct will recur if the
children are returned to the parent).
D. Best Interest
In her second issue, Mother argues that the evidence is legally and
factually insufficient to support the trial court‘s best interest finding because
DFPS presented no evidence of the children‘s desires and no evidence that the
children were ―ever physically harmed, endangered, or anything less than
properly clothed, fed, and happy while in [Mother‘s] care and custody.‖
There is 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). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child‘s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The
following factors, among others, should be considered in evaluating the parent‘s
willingness and ability to provide the child with a safe environment: the child‘s
age and physical and mental vulnerabilities; whether there is a history of
substance abuse by the child‘s family or others who have access to the child‘s
home; the willingness and ability of the child‘s family to seek out, accept, and
complete counseling services and to cooperate with and facilitate an appropriate
agency‘s close supervision; the willingness and ability of the child‘s family to
32
effect positive environmental and personal changes within a reasonable period of
time; whether an adequate social support system consisting of extended family
and friends is available to the child; and whether the child‘s family demonstrates
adequate parenting skills, including providing the child and other children under
the family‘s care with guidance and supervision consistent with the child‘s safety
and a safe physical home environment. Id. § 263.307(b); R.R., 209 S.W.3d at
116.
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
33
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, 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. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Here, the two children, ages eight and six, had been moved around by
Mother while she used methamphetamine, and their foster mother testified about
their dental problems and poor diet prior to moving in with her family seventeen
months before trial, as well as G.J.W.‘s difficulty with reading and bed-wetting.
Mother claimed that she had been aware of G.J.W.‘s reading issue and that she
had enrolled him in the first grade, but she also told Pratt that she had been
home-schooling the children. Mother participated in two counseling sessions in
two years, tested positive for drugs a week after completing inpatient rehab, and
relocated again shortly before the trial, preventing CPS from visiting her home to
see if it was appropriate for the children. While the foster mother and C.R.
testified about their support systems, Mother‘s biological father James had not
heard from Mother since 1993 before she contacted him the week before trial; he
was willing to take the children but testified that Mother told him that her mother
would not help her.
Further, although Mother complains that there was no evidence of the
children‘s desires, Johnson, their ad litem attorney, informed the trial court that
34
the children had told their foster parents and CPS caseworker that they wished
that Mother could live like they were living. Camilla, the boys‘ foster mother,
testified that G.J.W. told her that he wished Mother had played with him more but
that she slept a lot. And we have already addressed above the endangering
environment in which Mother had placed the children. Mother did not testify
about her plans for the children, while Camilla testified that she would adopt both
boys, if they became available, or just G.J.W. if C.W.R. II went to C.R. C.R.
testified that he wanted C.W.R. II to live with him, and the CPS caseworker
testified that CPS‘s plans for the children were for Camilla to adopt G.J.W. and
C.W.R. II to go to C.R., with plans to keep the children‘s sibling relationship
together. Camilla and C.R. both expressed their desire to maintain the children‘s
sibling relationship and explained their plans to help facilitate the transition for the
children. C.W.R. II told Camilla that he enjoyed his visits with his father and his
half-brother. Both Camilla and C.R. testified about their stable homes, while
Mother testified that she had just signed a lease on an apartment during the
week before the trial began.
Based on all of the above, and applying the appropriate standards of
review, the trial court could have found the evidence both legally and factually
sufficient that termination of Mother‘s parental rights to G.J.W. and C.W.R. II
would be in the children‘s best interest. See H.R.M., 209 S.W.3d at 108; J.P.B.,
180 S.W.3d at 573. Therefore, we overrule Mother‘s second issue.
35
E. Managing Conservator
In her final issue, Mother complains that the evidence is legally and
factually insufficient to support the trial court‘s appointment of DFPS as G.J.W.‘s
sole managing conservator because DFPS presented no evidence to support
that such an appointment was in G.J.W.‘s best interest and because separating
G.J.W. and C.W.R. II was not in the children‘s best interest. See Tex. Fam.
Code Ann. §§ 153.002, .005 (West 2008).
Under section 153.002, ―[t]he best interest of the child shall always be the
primary consideration of the court in determining the issues of conservatorship
and possession of and access to the child.‖ Id. § 153.002. Under section
153.005(b), a managing conservator must be a parent, a competent adult, an
authorized agency, or a licensed child-placing agency. Id. § 153.005(b).
―Conservatorship determinations, in contrast [to termination decisions], are
subject to review only for abuse of discretion, and may be reversed only if the
decision is arbitrary and unreasonable.‖ J.A.J., 243 S.W.3d at 616.
Contrary to Mother‘s argument, as set out above in our best interest
discussion, there was both legally and factually sufficient evidence that
terminating Mother‘s parental rights to G.J.W. was in his best interest and that
the appointment was necessary in order to place G.J.W. ―for adoption in a
suitable home.‖ Further, the record reflects that C.R. completed all of his
services, had had a stable job for several years, had established a stable home
with Selena, their child (C.W.R. II‘s other half-brother), and Selena‘s child, and
36
wanted C.W.R. II to come live with him and for Selena to adopt C.W.R. II. The
trial court‘s order appointed DFPS as both children‘s permanent managing
conservator and appointed C.R. as C.W.R. II‘s possessory conservator, in line
with the plan for C.R. to eventually become C.W.R. II‘s permanent managing
conservator. C.R., Camilla, and the children‘s CPS caseworker testified about
their plans to maintain the sibling bond between G.J.W. and C.W.R. II.
Therefore, under the circumstances presented by this case, we cannot say that
the trial court‘s decision was arbitrary or unreasonable, and we overrule Mother‘s
third issue.
IV. Conclusion
Having overruled all of Mother‘s issues, we affirm the trial court‘s
judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DELIVERED: June 20, 2013
37