in the Interest of A.T.K., M.A.C., and S.A.C., the Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00520-CV

IN THE INTEREST OF A.T.K.,
M.A.C., AND S.A.C., THE
CHILDREN

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellant I.S.S. (Mother) appeals the termination of her parental rights to

her children A.T.K. (Adam), M.A.C. (Megan), and S.A.C. (Sarah).2 We affirm.

1
See Tex. R. App. P. 47.4.
2
We use aliases for all of the children throughout this opinion. See Tex. R.
App. P. 9.8(b)(2).
 Background Facts

At the time of trial, Mother was twenty-two years old, and she had three

children. Mother had been in a relationship with R.K. (Royce) until shortly before

their son, Adam, was born in April 2007. She later met T.C. (Tony), who is the

biological father of Megan, born in June 2009, and Sarah, born in October 2010.

In December 2009, Child Protective Services (CPS) was notified that Tony

had assaulted Mother while Adam and Megan were in the house. When

interviewed by CPS investigator Robert Gebhardt, Mother stated that she would

not see or talk to Tony again, and she had no intention of allowing him to be

around the children. From January 2010 until July 2010, Mother attended

Friends of Family services for domestic violence victims. Although she told

counselors there that she was not in a relationship with Tony any longer, the

couple was still seeing each other and Mother eventually became pregnant with

Sarah. Mother moved in with Tony and his grandparents during the summer of

2010.

On December 10, 2010, when Sarah was about two months old, she

received immunizations. Sarah was upset and crying the rest of the day and

overnight. Her right leg was swollen, so Mother and Tony took her to the Denton

Presbyterian Hospital the next day where they were provided medicine for a

possible allergic reaction to the shots. No x-rays were taken. Mother returned to

the clinic with Sarah on December 13, 2010, where she was told that it was

2
normal for some children to experience swelling after receiving immunizations,

and while it was not an allergic reaction, to continue the medication for one week.

When the swelling did not improve, Mother took Sarah back to the

emergency room on December 23, 2010. After taking x-rays, it was discovered

that Sarah had a fracture on her right leg. She was transported to Cook

Children’s Hospital for further examination. At Cook, x-rays showed that Sarah

had five additional fractures—one on her right clavicle, one on her right tibia, and

two on her left femur. When interviewed by a Denton police officer, Mother told

him that she believed Sarah’s right femur was fractured as a result of the

immunizations, but she did not have an explanation for the other fractures.

Adam, Megan, and Sarah were removed from Mother and Tony on

December 24, 2010, and Megan and Sarah were placed in foster care. Adam

was placed with his father, Royce. After repeatedly failing drug tests for

methamphetamine, Tony voluntarily relinquished his parental rights to Megan

and Sarah.

After a four-day trial in December 2011, a jury found by clear and

convincing evidence that Mother (1) knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered the physical or

emotional well-being of the children, (2) engaged in conduct or knowingly placed

the children with persons who engaged in conduct that endangered the physical

or emotional well-being of the children, and (3) failed to comply with the

provisions of a court order that specifically established the actions necessary for

3
the parent to obtain the return of the children, and that termination was in the

best interest of the children. The trial court appointed the Department of Family

and Protective Services (DFPS) as the permanent managing conservator of

Megan and Sarah, and Royce as the permanent managing conservator of Adam.

Mother now appeals.

Standard of Review

A parent’s rights to “the companionship, care, custody, and management”

of his or her children are constitutional interests “far more precious than any

property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights

are of constitutional magnitude, they are not absolute. Just as it is imperative for

courts to recognize the constitutional underpinnings of the parent-child

relationship, it is also essential that emotional and physical interests of the child

not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). 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 for the

child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex.

App.—Fort Worth 2008, no pet.).

4
 Discussion

I. Failure to Appoint Counsel and Due Process

In her fourth issue, Mother argues that the trial court abused its discretion

in failing to appoint counsel for her at the beginning of the case. To determine

whether a trial court abused its discretion, we must decide whether the trial court

acted without reference to any guiding rules or principles; in other words, we

must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004). An appellate court cannot conclude that a trial court abused its discretion

merely because the appellate court would have ruled differently in the same

circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,

558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

Section 107.013 of the family code states in relevant part:

(a) In a suit filed by a governmental entity in which termination of the
parent-child relationship is requested, the court shall appoint an
attorney ad litem to represent the interests of:

(1) an indigent parent of the child who responds in opposition
to the termination.

....

(c) In a suit filed by a governmental entity requesting temporary
managing conservatorship of a child, the court shall appoint an
attorney ad litem to represent the interests of an indigent parent of
the child who responds in opposition to the suit.

(d) A parent who claims indigence under Subsection (a) must file an
affidavit of indigence in accordance with Rule 145(b) of the Texas

5
 Rules of Civil Procedure before the court can conduct a hearing to
determine the parent’s indigence under this section.

Tex. Fam. Code Ann. § 107.013 (West Supp. 2012).

DFPS filed its Original Petition for Protection of a Child, for

Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship on December 27, 2010. In its order for protection of a child in an

emergency and notice of hearing, signed the same day the petition was filed, the

trial court named DFPS as temporary sole managing conservator of the children,

and ordered Mother to appear at the adversary hearing on January 6, 2011, with

“all pertinent information regarding [Mother’s] income, and that upon a showing of

indigency and opposition to the suit affecting the parent-child relationship that a

licensed attorney at law of this state[] will be appointed.” Mother appeared for

the adversary hearing on January 6, 2011. During the hearing, she stated that

she agreed with the order and the service plan. Additionally, she did not claim

indigence nor file an affidavit of indigence in accordance with Rule 145(b) of the

Texas Rules of Civil Procedure.3 See id. § 107.013(d). After the adversary

hearing, the trial court signed a temporary order in which it deferred the

appointment of an attorney for Mother.

3
In her later-filed Motion for Appointment of Counsel, Mother claims that
she completed an application for appointed counsel and financial affidavit prior to
the January 6, 2011 adversary hearing. There is nothing on record to support
her claim, nor did she alert the trial court to any application at the hearing.

6
 A month later, on February 11, 2011, Mother filed an application for court

appointed counsel and financial affidavit. She also wrote on the application, “I

certify that I am [o]pposed to the termination of my parental rights.” Mother’s pro

bono counsel filed a Notice of Limited Appearance on February 25, 2011, and he

represented her at the hearing on the Motion for Appointment of Counsel on

March 31, 2011. The trial court found that Mother was indigent and that she

opposed the suit against her, and it appointed her counsel. The trial court then

instructed the parties to “go back and get a date for a termination trial,” and said,

“If we’re going to get lawyers, we might as well move right to a termination trial.”

Mother argues that this statement by the trial court to “move right to a

termination trial” compressed the amount of time Mother had to complete her

services and prepare for trial, and “in all likelihood had a negative [e]ffect on

[Mother’s] case and the ultimate result.” However, Mother does not demonstrate

how her ability to complete her services and prepare for trial was compressed or

compromised. DFPS filed its original petition on December 27, 2010. The

termination trial began on December 5, 2011, and the order terminating her rights

to her children was signed on December 12, 2011. The statutory dismissal

deadline was January 9, 2012. See Tex. Fam. Code Ann. § 263.401 (requiring

dismissal of the case “on the first Monday after the first anniversary of the date

the court rendered a temporary order appointing the department as temporary

managing conservator” if trial has not commenced or an extension has not been

7
granted).4 In between the appointment of counsel and the first day of trial, there

were three permanency hearings. Mother was represented by counsel and

participated in all three hearings. See In re J.R.P., 55 S.W.3d 147, 150 (Tex.

App.—Corpus Christi 2001, pet. denied) (holding that mother’s constitutional

rights were not violated by the trial court’s failure to appoint counsel immediately

after the filing of the original petition when mother did not request counsel at the

time of the filing of the original petition, received appointed counsel immediately

upon her request, and was represented through the rest of the proceedings in the

trial court). In summary, there is no evidence that the case proceeded on a

shorter timeline because Mother was appointed counsel, that Mother was

harmed by the delay in appointing counsel for her, or that the delay in appointing

counsel affected the ultimate outcome. The trial court thus did not abuse its

discretion by failing to appoint counsel at the adversary hearing on January 6,

2011. We overrule Mother’s fourth issue.

II. Testimony of Trial Judge as a Witness

In Mother’s fifth issue, she argues that the admission of a court order with

specific negative findings towards her from the trial judge constituted testimony of

the judge as a witness in violation of Texas Rule of Evidence 605. Under the

Texas Rules of Evidence, “the judge presiding at the trial may not testify in that

4
Mother did file a motion to retain the suit on the court’s docket and set a
new dismissal date, which was denied. However, Mother only moved on the
ground that a parent-child bonding assessment had not been done, not on the
ground that she had not had time to complete her services.

8
trial as a witness.” Tex. R. Evid. 605. While findings of fact are not technically

testimony, “orders submitted into evidence, containing findings based on pretrial

evidence by the very judge presiding over the termination proceeding, could be,

like a judicial comment on the weight of the evidence, a form of judicial influence

no less proscribed than judicial testimony.” In re M.S., 115 S.W.3d 534, 538

(Tex. 2003). The supreme court “specifically prohibits judicial comments that

indicate the opinion of the trial judge as to the verity or accuracy of the facts in

inquiry.” Id. In cases where the error complained of involves an evidentiary

ruling, we examine the whole record to determine if the complaining party was

harmed by the erroneous admission or exclusion. Id.

Mother challenges Petitioner’s Exhibit 15. Included in the 153–page

exhibit was an unredacted copy of the trial court’s temporary orders from January

6, 2011. The orders included these findings:

3.1 Having examined and reviewed the evidence, including
the sworn affidavit accompanying the petition and based upon the
facts contained therein, the Court finds there is sufficient evidence to
satisfy a person of ordinary prudence and caution that: (1) there was
a danger to the physical health or safety of the children which was
caused by an act or failure to act of the person entitled to
possession and for the children to remain in the home is contrary to
the welfare of the children; (2) the urgent need for protection
required the immediate removal of the children and reasonable
efforts consistent with the circumstances and providing for the safety
of the children[] were made to eliminate or prevent the children’s
removal; and (3) reasonable efforts have been made to enable the
children to return home, but there is a substantial risk of a continuing
danger if the children are returned home.

9
 The exhibit was admitted as business records. Mother’s counsel did not

object to the exhibit, but Rule 605 states that “no objection need be made in

order to preserve the point.” See Tex. R. Evid. 605. The exhibit was published

to the jury while a radiologist was testifying to Sarah’s injuries. There was no

testimony regarding the temporary orders included in the exhibit. The temporary

orders, with the trial court’s findings redacted, had also been admitted into

evidence earlier in the trial as Exhibit 7. These orders were used along with the

Family Service Plan to show what Mother was required to do in order for her

children to be returned to her permanently. This exhibit was referred to again

during the State’s closing argument to show how Mother had not complied with

the required service plan.

The orders, which contained findings based on pretrial evidence by the

same judge presiding over the termination proceeding, could be a form of judicial

influence similar to a judicial comment on the weight of the evidence. See M.S.,

115 S.W.3d at 538 (noting that the trial judge’s factual findings in a previous

order should have been redacted “so that the jury could draw its own

conclusions”). However, for their admission to be a reversible error, Mother must

show that the error probably caused rendition of an improper judgment. See

Tex. R. App. P. 44.1(a)(1); M.S., 155 S.W.3d at 538 (noting that it was the

mother’s burden to show that she was prejudiced by the admitted orders).

While Mother argues that a “reasonable inference could be drawn that the

jury saw the findings of [the trial judge],” she does not show how the admission of

10
these temporary orders probably caused the rendition of an improper judgment.

The jury’s findings, as discussed below, are supported by other ample evidence

in the record. Further, DFPS did not point out the findings to the jury for them to

consider, and it did not base any of its arguments on the findings of the trial

court. See M.S., 115 S.W.3d at 538; In re P.D.A., No. 11-04-00189-CV, 2006

WL 726297, at *5 (Tex. App.—Eastland Mar. 23, 2006, no pet.) (mem. op.)

(holding that mother failed to show that the jury reached an improper judgment

based on unredacted orders containing trial court’s findings when the jury’s

findings were supported by other evidence and the State did not base its

arguments on the improperly admitted orders). After reviewing the entire record,

we hold that Mother has not met her burden of showing she was prejudiced by

the admission of this exhibit. See M.S., 115 S.W.3d at 538. We overrule her fifth

issue.

III. Legal and Factual Sufficiency of the Evidence

A. Grounds for Termination

In her second and third issues, Mother challenges the legal and factual

sufficiency of the evidence supporting the trial court’s findings on the grounds for

termination. The trial court terminated Mother’s rights based on subsections (D),

(E), and (O). See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O) (West Supp.

2012). In her appellate brief, Mother challenges the legal and factual sufficiency

of the evidence supporting the findings that she knowingly placed or knowingly

allowed the children to remain in endangering conditions or surroundings, that

11
she engaged in conduct or knowingly placed the children with persons who

engaged in conduct that endangered the physical or emotional well-being of the

children, but she did not challenge the findings that she failed to comply with the

provisions of a court order that specifically established the actions necessary to

obtain the return of her children. The only reference to this ground for termination

is in Mother’s summary of the argument section of her brief where she states that

she “did not fail to comply” with the court order. Mother presents no argument

challenging the trial court’s finding that she failed to comply with the provisions of

a court order that specifically established the actions necessary for her to obtain

the return of her children. See id. §§ 161.001(O), 261.001(8) (West Supp. 2012).

She has thus waived this issue. See Tex. R. App. P. 38.1(i) (requiring an

appellant’s brief to contain clear and concise arguments “with appropriate

citations to authorities”); see also Fredonia State Bank v. Gen. Am. Life Ins. Co.,

881 S.W.2d 279, 284–85 (Tex. 1994) (discussing the “long-standing rule” that a

point may be waived due to inadequate briefing).

Even if she had not waived this issue, there is sufficient evidence to

support the trial court’s finding that she failed to comply with the court order

establishing the actions necessary for the return of her children. It is well settled

that the family code does not provide for excuses for failure to complete court-

ordered services, nor does it consider “substantial compliance” to be the same as

completion. See In re M.C.G., 329 S.W.3d 674, 675–76 (Tex. App.—Houston

[14th Dist.] 2010, pet. denied); In re T.T., 228 S.W.3d 312, 319 (Tex. App.—

12
Houston [14th Dist.] 2007, pet. denied) (noting Texas courts have uniformly

found substantial compliance with provisions of court orders inadequate to avoid

termination findings under subsection (O)); In re T.N.F., 205 S.W.3d 625, 630–31

(Tex. App.—Waco 2006, pet. denied) (emphasizing that parents must comply

with every requirement of the court order and that subsection (O) does not allow

for consideration of excuses for noncompliance) overruled on other grounds by In

re A.M., 2012 WL 3242733, at *2 (Tex. App.—Waco Aug. 9, 2012, no pet. h.);

Wilson v. State, 116 S.W.3d 923, 929 (Tex. App.—Dallas 2003, no pet.)

(“Wilson’s economic argument does not create a factual dispute as to her

compliance: it is, instead, in the nature of an excuse for her failure to comply.”).

Rather, any excuse for failing to complete a family services plan goes only to the

best interest determination. See T.N.F., 205 S.W.3d at 631; see also Holley v.

Adams, 544 S.W.2d 367, 371 (Tex.1976); In re C.M.C., 273 S.W.3d 862, 874–75

(Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that mother’s argument

that she did not take a parenting class because none were available “[did] not

create a factual dispute as to her compliance; rather, it is in the nature of an

excuse for her failure to comply”).

Orders signed by the trial court on February 11, 2011, and August 11,

2011, incorporated the service plan that DFPS had filed with the trial court on

January 26, 2011, approved it, and made it an order of the court. The service

plan required Mother to, among other things, complete a psychological

evaluation, establish and maintain safe, stable, and appropriate housing for a

13
period of at least six months, and establish and maintain suitable employment for

a period of at least six months.

Family Based Safety Services caseworker Julissa Rodriguez testified that

the psychologist assigned to complete Mother’s psychological evaluation could

not get a hold of Mother. When Rodriguez spoke to Mother about it, Mother lied

and said that the psychologist told her she was no longer working with DFPS.

CPS conservatorship worker Amanda Mention testified that Mother had not

established and maintained safe, stable, and appropriate housing for a period of

six months. At the time of trial, Mother was living in an apartment with two

roommates. She did not know either of their last names, even though she

claimed to have known them for more than a year. Mention testified that CPS

had concerns about her housing because it did not have enough information on

who was living in the house to perform criminal history and background checks.

There was testimony that Mother’s brother, who has a criminal and drug use

history, may live in the apartment with her. Mention also testified that Mother had

not refrained from criminal conduct because Mother had been using marijuana

since her DFPS case was opened.

Mother testified that at the time of trial, she had just been hired at Denton

ISD to serve lunch, but had not begun working because she had to get

fingerprinted. She had worked in a temporary position before that. Prior to that,

she had worked at the Four Seasons, but had quit because she was “having

issues with another lady” who would “always mouth talk to [her].” She also

14
admitted that she had not completed one of the classes that was required by the

service plan.

The evidence established that at the time of trial Mother had not

maintained stable employment or stable housing for six months and had not

completed the psychological evaluation as required by her service plan. A

reasonable factfinder could have formed a firm belief or conviction that Mother

failed to comply with the provisions of a court order that specifically established

the actions necessary for her to obtain the return of her children. We therefore

overrule her second and third issues as to the subsection O grounds. Because,

along with a best interest finding, a finding of only one ground alleged under

section 161.001(1) of the family code is necessary to support a judgment of

termination, we need not address the remainder of Mother’s second and third

issues. See Tex. R. App. P. 47.1; see also In re E.M.N., 221 S.W.3d 815, 821

(Tex. App.—Fort Worth 2007, no pet.); In re S.B., 207 S.W.3d 877, 886 (Tex.

App.—Fort Worth 2006, no pet.).

B. Best Interest

In her first issue, Mother challenges the legal sufficiency of the evidence

that termination was in the best interest of the children. See Tex. Fam. Code

Ann. §161.001(2).

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

15
in the child’s best interest. Id. § 263.307(a) (West 2011). The following factors

should be considered in evaluating the parent’s willingness and ability to provide

the child with a safe environment:

(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;

(4) whether the child has been the victim of repeated harm after
the initial report and intervention by the department or other agency;

(5) whether the child is fearful of living in or returning to the child’s
home;

(6) 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;

(7) whether there is a history of abusive or assaultive conduct by
the child’s family or others who have access to the child’s home;

(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) 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;

(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;

(12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the
family’s care with:

16
 (A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent
with the child’s physical and psychological development;

(C) guidance and supervision consistent with the child’s
safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and

(F) an understanding of the child’s needs and capabilities;
and

(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.

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;

17
 (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, 544 S.W.2d at 371–72.

These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. 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.

C. The Evidence

At the time of the trial, Adam was four years old, Megan was two years old,

and Sarah was fourteen months old. See Tex. Fam. Code Ann. § 263.307(b)(1).

Adam’s paternal grandmother testified that Adam was really anxious before his

visitations with his Mother, and during early spring of 2011 his anxiety was so

great that his pediatrician recommended that he be prescribed Zoloft. Further,

she testified that Adam had told her about Tony hurting Mother in the summer of

2010, and told her that Tony choked Mother and made her cry.

Sarah and Megan have been with the same foster family since April 1,

2011. See id. § 263.307(b)(2). Since that same time, Adam has lived with his

father, Royce. Prior to living with his father, Adam had been living with Mother’s

18
mother. Mother testified that she did not know how long Adam had been staying

fulltime with her mother, but later she testified that it had been since the summer

of 2010. Mother did not tell Royce that Adam was not living with her, but would

have her mother bring Adam to Mother’s house on days when Royce would pick

him up for visitation.

Sarah’s x-rays revealed that she had suffered six fractures to her body.

See id. § 263.307(b)(3). Daniel Oshman, a pediatric radiologist, testified that

these types of fractures are the result of “significant trauma.” He described a

fracture to the right femur, the left femur (which he explained as “the lining of this

bone has been stripped off as well with some sort of twisting or grasping type

injury typically that pulls the fibrous lining, the thick lining of the bone off of the

bone and causes it to bleed underneath”), the right forearm, and the right

clavicle. Sarah’s metaphyseal fracture is of the type “almost always seen with

non-accidental trauma and often are seen with children who were shaken.” He

said that forearm injuries like Sarah’s “usually occur[] from a direct blow” not by

grasping or twisting the baby.

Oshman testified that the leg fractures would cause pain to the child every

time she moved. He estimated that the fractures were about two to three weeks

old at the time they were x-rayed. He said, “It’s . . . the fact that . . . these injuries

have obviously been there a long time and this is the first time we’re seeing the

child to get x-rays is worrisome in that . . . you know, that this has been going on

for a while.” He believed the fractures were the result of child abuse.

19
 Sophia Grant, a CARE team pediatrician at Cook Children’s Hospital also

testified that Sarah’s injuries at her young age were “extremely concerning” for

child abuse. She believed that an adult would be aware that the child was in pain

when the fractures occurred.

There was no evidence that the other children had been physically

harmed, but Royce testified that Mother once dropped Adam on the couch when

he was a baby in order to attack Royce in a fit of jealousy. There was also

testimony that Mother would speak inappropriately to the children. Royce

testified that at one visitation, Mother told Adam to get away from her because

she was angry with DFPS over something else. See id. § 263.307(b)(4). At

another visit, he asked her for a toy and she told him she did not bring him one

because he was sick and did not show up for the last visit. Mother testified that

she never spanked her children, but Tony testified that that was “not true.” Tony

said that he had once seen Mother spank Adam too hard.

Mother’s counselor, Mark Dittloff, testified that Mother has post-traumatic

stress disorder (PTSD) as a result of her abusive childhood. See id.

§ 263.307(b)(6). He explained that Mother’s “ability to regulate her fear has been

compromised, either damaged or destroyed.” Dittloff testified that PTSD “can

affect parenting in a variety of different ways. Some parents may simply

withdraw from their children. Some may become explosive. . . . [S]ome may turn

to drugs and alcohol. Some may continue to be very effective parents.” Dittloff

testified that it is difficult to predict how long it will take someone to work through

20
their PTSD and that although Mother has improved since seeing him, he could

not testify when Mother will be well. He believed it would require months or even

years of more therapy.

Mark Foster, a psychologist, also evaluated Mother. He rated her IQ as “in

the low average range” and said that her reading ability was at a fourth-grade

level, her sentence comprehension was at a sixth-grade level, and her math skills

were at an eighth-grade level. Foster disagreed with Dittloff’s PTSD diagnosis.

He noted no “hypervigilance” or anxiety. He described Mother as being

“reasonably truthful” in her evaluation but noted, “There were times when she

was rather vague and evasive in answering questions, and I have some

concerns there about that.” He noted that Mother distorted information to

downplay her shortcomings.

Foster testified that her test results indicated that she is likely to have

problems managing her emotions, especially anger. He explained that “it’s fairly

common for people with this particular profile to very often have some run-in with

the legal system, whether that be civil or criminal,” and that they “typically have

difficulty learning from their experience.” He also said that Mother “viewed

herself as an exceptionally good parent,” which he said was “remarkable.”

Foster said that Mother likely has romantic relationships that are “fairly

brief and . . . rather stormy.” Because of those rocky relationships, her children

could “have problems with developing a sense of security.” The children’s ability

to feel safe and protected would “certainly [be] impair[ed]”.

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 Mother and Tony have a history of domestic violence. See id. §

263.307(b)(7). When asked how many times Tony has assaulted her, Mother

said “a lot” and “too many.” When asked if she recalled telling Denton County

Friends of the Family that Tony had beat her up in a car with Adam while she

was pregnant with Megan, she answered, “I think so.” She also told Friends of

the Family that Tony pushed her while she was pregnant with Sarah and later

choked her. She claims that Tony gave her a black eye in June or August 2010,

and that he choked her until she was unconscious on December 15, 2010.

Tony denied ever hitting Mother when she was pregnant with Megan, but

admitted that he had “grabbed her and put her up against . . . a car.” He also

denied giving Mother a black eye, but said that Mother did have a black eye in

December 2010, and that Mother would not tell him where it came from. Tony

admitted to using marijuana and methamphetamine. See id. § 263.307(b)(8).

Tony testified that he had used marijuana with Mother one or two months after

the children had been removed, but he did not believe she used marijuana

regularly.

Almost a year after Sarah’s injuries were discovered, the perpetrator is still

unknown. See id. § 263.307(b)(9). Dittloff testified that Mother believes that

Tony was the perpetrator. At trial Mother testified that Tony could have injured

Sarah but that she did not know for sure.

John Burgess, a special investigator for DFPS testified that Tony’s

grandmother told him that she had seen Mother throw Sarah into a playpen.

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Tony testified that he does not know who hurt Sarah. Officer Scott Salazar of the

Denton Police Department testified that Mother was the primary suspect in

Sarah’s case.

Leah McMaster, the CPS investigator who was present when Sarah was

taken to the hospital, testified that she had difficulty getting information from

Mother. See id. § 263.307(b)(10). When McMaster asked Mother how many

children she had, Mother first told her she only had two. McMaster looked into

Mother’s CPS record and discovered that Mother also had Adam. She

confronted Mother. Mother told McMaster that she did not know who Adam’s

father was, and when McMaster told her that Royce’s name was in the CPS file,

Mother claimed that Royce was involved in Adam’s life but that she did not have

any contact information for him. Mother also told McMaster that she did not

know her mother’s contact information. McMaster had to again tell Mother that it

was important to get in contact with Mother’s mother, and Mother then dialed

Mother’s phone number from memory.

CASA supervisor Kristen James noted that Mother had not really initiated

services before she was incarcerated, but Mother had told James that she

wanted to work the services to get her children back. Officer Salazar described

Mother as evasive when he interviewed her regarding Sarah’s injuries. Thomas

Kelly, the guardian ad litem for the children, testified that both Mother and Tony

continually denied being in a relationship with each other, which he knew was not

true.

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 Rodriguez testified that it was important for Mother to complete a

psychological evaluation, but the psychologist could not reach Mother, despite

repeated attempts to schedule the evaluation. When Rodriguez approached

Mother about the evaluation, Mother lied and said that she had talked to the

psychologist, but the psychologist told her she was no longer working with DFPS.

Rodriguez said that a parent who is not honest with DFPS cannot be very

successful in completing her services.

Despite being told that her relationship with Tony was inappropriate, or

even harmful to the children, Mother continued to see Tony up until the weeks

before the trial. See id. § 263.307(b)(11). Rodriguez testified that she never

contacted Tony because Mother told her that she was not in contact with him.

Mother also told Rodriguez that she did not have Tony’s contact information.

When she became pregnant with Sarah, she implied to Rodriguez that it was by

another man. Rodriguez said that if she had known the truth about Mother’s

relationship with Tony, she would not have closed her case as successfully

completed.

Mother delayed in starting many of her services, and even when Mention

rescheduled her visitations with Adam so that Mother could attend a healthy

relationships class, Mother still did not attend the class. However, Michelle Fox,

a counselor at Denton County Friends of the Family, testified that Mother

completed nine group sessions, even though she was only required to do four.

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 Rodriguez testified that she had no concerns regarding Mother’s parenting

skills. However, Mention testified that Mother’s parenting skills “could be

adequate,” but that she had “great concerns” after watching Mother’s visitations

with the children. See id. § 263.307(b)(12). She described Mother’s behavior

towards Sarah during visits as “very non-loving.” Kristen James, a CASA

supervisor, described Mother’s first visits with her children as “pretty disturbing.”

James testified that Mother did not show any bond with Sarah, explaining that

Mother would not look Sarah in the eyes and would hand Sarah over at the end

of the visit without saying goodbye. James recalled one visit in the winter in

which Mother left Sarah in a snowsuit buckled into her car seat for most of the

visit, despite the room being very warm, until James suggested she take Sarah

out of the snowsuit. James also testified that Mother’s visits improved over time

and that Mother became more loving towards Sarah.

Mention testified that at visits, Mother would often not change Megan’s

diapers, even when Megan would tell Mother that she had gone to the bathroom.

See id. § 263.307(b)(12)(A). Mention even commented on the smell to Mother,

and Mother would still not attempt to change Megan’s diaper. Tony testified that

Mother did not like to change the babies’ diapers at home and that he often had

to change them because she did not want to do it herself. He also said that

Mother was uncomfortable bathing the children.

Royce also testified that when Adam was a baby, he would often have

diaper rash because he had often been sitting in a dirty diaper while in Mother’s

25
care. He said that sometimes when he got Adam, he was wearing old or dirty

clothes and Royce would have to buy more clothes for him.

There was testimony that Mother has not shown guidance and supervision

consistent with the children’s safety. See id. § 263.307(b)(12)(C). Mention

testified that at one visit, Adam was dangerously climbing on a high chair and

neither Mother nor her mother attempted to stop him or help him despite it being

a safety hazard. Mention described “several different visits” in which Adam

would try to get Mother’s attention by “constantly call[ing] her name,” and Mother

would ignore him, which Mention felt was an inappropriate response. See id.

§ 263.307(b)(12)(B).

She also described a visit in which Megan pulled a box cutter out of

Mother’s purse. Mother told Megan not to play with it but she did not take the

box cutter away from Megan. Megan would also take medicines out of Mother’s

purse, and if Mother took them away, she would not place them out of Megan’s

reach. Mention testified that at another visit, Megan found Mother’s inhaler and

Mother was not watching her. Other people had to step in to prevent Megan

from putting the inhaler in her mouth. Sarah would also walk around with things

in her mouth and Mother would not stop her. Mention testified that she had to tell

Mother to take the small toys out of Sarah’s mouth because they were a choking

hazard. At other visits, Sarah would pull toys off the shelf, making a loud crash,

and Mother would not look over to make sure Sarah was not harmed.

26
 Mention testified that she believed it was endangering to Adam for Mother

to let him live with her mother, knowing that Mother’s mother allowed Mother’s

father to abuse her for many years and did nothing to protect her. See id. §

263.307(b)(12)(D). Mother said she believes her mother has good parenting

skills, and although she acknowledged that her mother physically and

emotionally abused her growing up, she wrote it off as her mother being

“frustrated” with Mother’s alcoholic father.

Mention also expressed concern for Mother’s ability to provide a safe

home environment if she is having the panic attacks, anxiety, and paranoia from

which she claims she suffers. Mention did not think Mother adequately screened

inappropriate people from her children. Tony testified that he believed that

Mother’s brother lives in the apartment with Mother and her roommates, and that

he saw signs of drug use in the house “a couple of months ago.” Royce testified

that he has concerns about the type of people Mother allows into her home. He

said, “[I]t’s never been the greatest crowd of people,” and he described being

attacked by Mother’s brother with a knife. Rodriguez, the Family Based Safety

Services caseworker, testified that twice she had gone to Mother’s apartment

and Mother’s brother or her mother’s roommate answered the door and Mother

was not home.

Foster testified that he has “strong concerns” that Mother could be a

protective parent. See id. § 263.307(b)(12)(E). Mention expressed concern that

Mother continues to have a relationship with Tony because of their extensive

27
history of violence and because Tony continues to use methamphetamine.

Mother admitted to lying to DFPS about her relationship with Tony. Mention

explained that children can often be injured during incidences of domestic

violence. When Mother was asked if she thought fighting in front of the children

was endangering, she answered, “I guess, yes.”

Mother testified about one fight with Tony that occurred in front of the

children in December 2009. She first testified that the children were not in the

room, but later explained that they had been in the room and her mother’s

roommate had removed them when she saw it was getting violent. Mother

admitted that she had told the CPS investigator a few days later that she was not

going to allow Tony around the children anymore. Royce’s grandmother testified

that Adam would tell her and Royce about altercations between Mother and

Tony. He would describe “[Tony] hurting mommy and mommy crying and

mommy and [Tony] fighting. And he was very -- it was always the same scenario,

and he was very specific about [Tony] choking mommy or mommy crying.”

Mother testified that if the children were returned, she would get a

restraining order against Tony. Mother admitted that she had previous

opportunities to get a protective order against Tony but that she never did. She

also testified that she moved into Tony’s house in 2010 with him and his

grandparents even though she was scared of him and his grandmother would

threaten her. But later she admitted that she moved in because she was still in a

relationship with him. Mother testified that she had reported to the police that

28
Tony was stalking her, but when asked about the reports, she could not provide

any information about when she had made the reports or how many she had

made. She was asked if she ever told anyone at Friends of the Family that she

was being stalked, and she replied, “I think. I don’t know.” Mention testified that

CPS told Mother her continued relationship with Tony was inappropriate because

of the violence between them, but Mother continued to see Tony.

Mother testified that if she knew for sure that Tony had injured Sarah, she

would leave him for good. But she could not say what it would take for her to

know for certain. She also said that Tony had told her that he would go to jail at

the end of this case, and when she asked him if he had injured Sarah, he would

refuse to talk about it.

Mention testified that Mother has never expressed concern over Sarah’s

injuries to her. The guardian ad litem testified that he was concerned that neither

Mother nor Tony seemed concerned that they did not know who injured Sarah.

Foster testified that Mother’s “expectations of what constitutes age-

appropriate behavior may be rather unrealistic.” See id. § 263.307(b)(12)(F).

Mention testified that Mother does not have an adequate social support system.

See id. § 263.307(b)(13). Mother’s counselor Dittloff agreed. Mother testified that

she could take the children to North Carolina where she has family. However,

she did not seem to realize that meant that Adam would not be able to see his

father. Mention testified that Mother had never told her of a plan to move to

North Carolina and that Mother had said she had not talked to those family

29
members “in several, several years, and it seems unrealistic to think that that can

actually occur.”

Megan and Sarah are too young to express their desires, but Royce’s

grandmother testified that Adam did not like living with Mother’s mother because

he was afraid of her roommate. See Holley, 544 S.W.2d at 371–72. Royce’s

grandmother testified that Adam “never says that he misses his mom,” but that

he does talk about protecting his little sisters. She said that Adam “talks a lot

about mommy not being there or mommy missing.” Royce also testified that he

has never heard Adam say that he misses his mother.

Megan and Sarah’s foster mother testified that Megan would defecate right

before visits with her mother repeatedly for two and a half months, which the

foster mother interpreted as signs of anxiety. She said that Megan would often

need to be comforted after visitation.

Leah McMaster, a CPS investigator who investigated Mother and Tony the

night Sarah was taken to the hospital, described Mother as being detached from

Sarah, showing no “affection or concern” for Sarah. When Sarah’s blanket fell off

at the hospital, Mother did not move to put it back on her. McMaster interviewed

Tony’s mother and grandmother, who both said that Mother “was rough with the

children and not very affectionate, didn’t seem to want to be there with the

children very much.” Tony’s grandmother told McMaster that she saw Mother

throw Sarah into her crib. McMaster testified that if Mother did have PTSD, she

30
would be concerned about her ability “relating to real world events” or having an

emotional attachment to her children.

Detective Eric Beckwith, who interviewed Mother and Tony at the hospital,

testified that Mother never called Sarah by her name during the interview, but

referred to her as “it.” Beckwith said that it was very unusual. Officer Salazar

also testified that Mother would not refer to Sarah by her name during his

interview.

Royce testified that Mother would withhold Adam from visitation when she

was angry with Royce. He said that he did not see Adam for almost a year

because Mother would not return his phone calls. He eventually had to file for

court-ordered visitation. He described Mother as manipulative and “a very smart

woman. She knows what she’s doing.” Mother admitted that she had been

having difficulty managing her own day-to-day life but argued that it is because of

her PTSD.

Adam is living with his father Royce and Royce’s grandparents. Royce’s

grandmother testified that Adam is thriving in her home and described Adam as a

“very smart little boy” who loves going to pre-kindergarten. She said that Royce

is a good father who tries very hard. Royce testified that he would like Adam to

continue to see his sisters because Adam loves them. DFPS plans for Adam to

continue to live with his father.

The foster home in which the girls are placed has expressed interest in

adopting both girls. See id. At the time of trial, the girls had been in the same

31
foster home for about nine months. The guardian ad litem testified that he was

“amazed” at how well the girls were doing in their foster home and that they were

“developing well.” Mention testified that DFPS has no concerns about the

parenting abilities of the foster family. The foster mother described her

experience with the girls as “[w]onderful. Joyous. Exciting. It’s one of my

dreams. It’s been absolutely wonderful.” She says the girls call her and her

husband Mom and Dad and Megan tells them she loves them “all the time.” She

also testified that she would like for them to continue to have a relationship with

their brother.

CASA supervisor James testified that the foster home that the girls are in

is a “great placement.” She also testified that she could not visit Mother’s home

because Mother could not give her “an address of where she was living exactly.”

Royce is currently living with his grandparents while he attends college, but

he is planning on moving into his own place with Adam when he graduates with a

degree in mechanical engineering. The guardian ad litem testified that he

thought Royce was “quite acceptable” in his ability to care for Adam and his

choice in the daycare in which he had enrolled Adam.

The guardian ad litem recommended that Mother’s rights be terminated for

a number of reasons. He testified,

Well, first of all, the big concern is we don’t know who hurt that
baby. It’s possible anybody did it. But to me and to CASA, that's an
unsafe environment to be putting that baby back in because you
don’t know if someone—if the baby could be hurt again.

32
 We’re also concerned about the support for the children. How
are they going to be supported?

We're also concerned about the support structure for the
parents. Where are they going to go for help? Who is going to do the
daycare? Are they both—are—whoever gets them, are they going to
get a job and keep that job for more than a few weeks and quit?

So those—those are the big issues. There’s a bunch of them.
Safety is—is a key issue obviously, the ability to support and
maintain a proper environment, safe environment for the child.

Royce testified that he believed Mother’s parental rights should be terminated

because he does not believe that the children are safe in her care.

Considering the relevant statutory factors in evaluating Mother’s history of

domestic violence, the magnitude of Sarah’s injuries and the lack of resolution in

finding the perpetrator, Mother’s dishonesty with police and DFPS agents, her

inability to effect positive environmental and personal changes, her inability to

provide a safe home and protect the children from exposure to violence, and the

other relevant statutory and Holley factors, we hold that, in light of the entire

record, and giving due consideration to evidence that the jury could have

reasonably found to be clear and convincing, the jury could reasonably have

formed a firm belief or conviction that termination of Mother’s parental rights to

the children was in the children’s best interests. Accordingly, the evidence is

legally and factually sufficient to support the jury’s family code section 161.001(2)

best interest finding. We overrule Mother’s first issue.

33
 Conclusion

Having overruled Mother’s issues on appeal, we affirm the judgment of the

trial court.

LEE GABRIEL
JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: September 27, 2012

34