Opinion issued December 12, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00542-CV
———————————
IN THE INTEREST OF A.A., D.A., AND J.A., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2011-07426J
MEMORANDUM OPINION
In this accelerated appeal, appellant challenges the trial court’s order,
entered after a jury trial, terminating her parental rights to her three minor
children. 1 In her third through seventh issues, appellant contends that the evidence
is legally and factually insufficient to support the jury’s findings that termination
1
Although the jury also terminated the parental rights of the children’s
fathers, whose full names are unknown, they are not parties to this appeal.
of the parent-child relationship was in the children’s best interests 2 and she
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings that endangered their physical or emotional well-being,3 engaged in
conduct or knowingly placed the children with persons who engaged in conduct
that endangered their physical or emotional well-being,4 constructively abandoned
the children, 5 and failed to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of the
children. 6 In her first, second, eighth, ninth, and tenth issues, appellant contends
that the trial court erred in admitting certain evidence; allowing the withdrawal of
deemed admissions; continuing, rather than dismissing, the case; and commenting
on the weight of the evidence.
We affirm.
Background
In May 2010, the Texas Department of Family and Protective Services
(“DFPS”) removed appellant’s three children from her custody and placed them
with a relative. The trial court granted DFPS temporary managing conservatorship.
2
See TEX. FAM. CODE ANN. § 161.001(2) (Vernon Supp. 2013).
3
See id. § 161.001(1)(D)
4
See id. § 161.001(1)(E).
5
See id. § 161.001(1)(N).
6
See id. § 161.001(1)(O).
2
In June 2010, DFPS filed a petition seeking permanent managing conservatorship
and termination of appellant’s parental rights, however, the trial court dismissed
the case without prejudice.
Subsequently, on December 2, 2011, DFPS filed the instant lawsuit, alleging
neglectful supervision and physical neglect, based on the allegations in its 2010
lawsuit and subsequent events, and again seeking permanent managing
conservatorship and termination of appellant’s parental rights. The trial court
entered an “order for protection of a child in an emergency,” recognizing that the
children had been removed, finding that there existed a continuing danger to their
physical health and safety, and naming DFPS their temporary sole managing
conservator, pending a full adversary hearing.
On December 5, 2011, after a hearing, the trial court entered a temporary
order appointing DFPS managing conservator of the children and requiring
appellant to comply with a DFPS Family Service Plan (“FSP”). The January 24,
2012 FSP required that appellant obtain and maintain legal and verifiable
employment, obtain and maintain appropriate housing, “in which she is listed on
the lease,” refrain from allowing anyone with a criminal or DFPS history to reside
in her home, allow caseworkers to visit and have access to her home for scheduled
and unscheduled visits, and submit to a psycho-social assessment.
3
After a status hearing on April 4, 2012, the trial court issued an order in
which it found that appellant had reviewed and understood the FSP and
admonished appellant that “unless she [was] willing and able to provide the
children with a safe environment, . . . her parental and custodial duties and rights
may be subject to restriction or to termination or the children may not be returned
to her.” And the trial court adopted the FSP as if fully set out in its order.
After the trial court granted an extension of the statutory dismissal date,7
trial commenced to a jury on May 14, 2013. DFPS Caseworker Teara Magee
testified that on May 13, 2010, she received a referral in which it was alleged that
appellant’s children, who were two, six, and seven years old, were regularly
unsupervised two to three hours each day and had been seen alone outside their
apartment at night. The referral also alleged that the children were “dirty” and the
youngest walked around without a diaper. A pest control technician reported that
when he entered appellant’s apartment, he found “feces all over the floor,” open
diapers laying on the couch, and open lunchmeat on the counter. He reported a
“bad rodent infestation” and characterized the apartment as a “dangerous health
sanitation situation” and “health safety hazard.”
DFPS Investigative Supervisor Lashamia Lofton testified that on May 14,
2010, she went to appellant’s home to investigate the referral. When she arrived,
7
See TEX. FAM. CODE ANN. § 263.401(b) (Vernon 2008).
4
she saw three young children playing in the entry way of the apartment complex at
the curb, with one of the children near the community pool. The children appeared
dirty, had colds, and wore dirty, sagging diapers. Lofton observed the children for
approximately fifteen minutes and then walked over to them. No adults appeared
while she spoke to the children.
Lofton then spoke with appellant, who explained that she has three minor
children and three adult children. Two of her adult children each have two
children of their own. Lofton noted that appellant lives in a two-bedroom
apartment with two of her adult children and a total of seven younger children.
The children Lofton saw playing in the entryway of the complex were appellant’s
son, age two, and two of her grandchildren, ages one and three. Although
appellant told Lofton that she was watching the children through her apartment
window, Lofton noted that the window blinds were closed and the children at the
front gate could not have been seen from the position of the window. Appellant
then said that the children “knew” not to go into the street.
Inside the apartment, Lofton saw trash overflowing in the kitchen and
bathroom, dirty dishes stacked, open containers of food, flies, and piles of clothing
scattered throughout. Appellant told Lofton that it was the children’s
responsibility to clean the kitchen and bathroom areas. Although appellant
admitted that she had been involved with DFPS on numerous occasions, she
5
refused to provide the names of the children’s fathers, asserting that their names
were irrelevant because they were not providing support. Appellant also admitted
that she was unemployed and not receiving food stamps or Medicaid because she
had not renewed her applications. She obtained the apartment in January 2010
with “income tax money,” and, prior to that, had been “homeless.” And she
admitted that she had previously tested positive for marijuana use while pregnant
with her youngest child.
On May 17, 2010, Lofton returned and spoke with one of appellant’s adult
daughters, who informed her that appellant had gotten into a fight with another of
her adult daughters the day before. The younger children were not involved, but
they were present. During the fight, the apartment windows were broken and law
enforcement was called to intervene. Appellant then agreed to place her children
with her sister, “Ruthie.” Days later, one of the adult children tested positive for
marijuana use. And, on June 14, 2010, appellant tested positive for marijuana use.
At Ruthie’s house, Lofton interviewed appellant’s then seven-year-old child,
who said that she and her six-year-old sister had been responsible for cleaning
appellant’s house every day. The seven-year-old said that there had been a fight at
her house the previous day between appellant and one of the adult children and law
enforcement was called to the scene. She also noted that the two adult children
6
who live in the apartment “bring boys over,” and they, along with appellant, smoke
“cigars” that they make with “green things” from appellant’s purse.
DFPS Caseworker Teara Magee testified that in April 2011, the trial court
ordered appellant to report to her every Friday regarding appellant’s attempts to
obtain employment, but she had not complied. Magee further testified that in
September 2011, appellant went to Ruthie’s house unannounced to visit the
children and a physical altercation ensued between appellant, one of her adult
children, and Ruthie. Appellant threatened Ruthie and, during the altercation,
appellant’s adult child hit Ruthie’s face, causing blood to spatter on Ruthie’s car.
According to Magee, the trial court then ordered that appellant have no further
visitation with the children until the children’s therapist provided a
recommendation.
Magee visited appellant’s apartment on November 15, 2011 and found
appellant unemployed and living with her boyfriend. Magee saw mold on the floor
from leaking ceilings, carpeting soaked with water, and an overflowing trash can,
which “smelled like a dumpster” and was infested with insects. And there were
dirty dishes stacked in the kitchen. Appellant told Magee that she was about to
cook dinner, and she pulled “moldy” chili out of the freezer. When appellant
moved a pot on the stovetop, roaches appeared. As Magee attempted to talk with
appellant about the condition of the apartment, appellant “just laughed.”
7
Appellant testified that she has six children by four different fathers, whom
she did not identify, and she does not receive support. She explained that she has
an extensive DFPS history in Michigan and Texas, has moved numerous times,
and her children were not in school from October to December 2009 because she
moved. In January 2010, appellant, her three minor children, two of her adult
daughters, and their four children, moved into a two-bedroom apartment, but she
“lost” her job days later. Since May 2010, when the three minor children were
removed, she estimates that she has given Ruthie a total of $300 to $400 to support
them.
Appellant further testified that she has lived with her boyfriend in his three-
bedroom, two-bath apartment since January 2011. She explained that there is a
school near her boyfriend’s apartment, but she is unsure which grade her oldest
child is in. And she noted that two of the bedrooms do not have any furniture for
the children to sleep on because she has been unemployed since January 2010. In
regard to her employment, appellant noted that she has been in cosmetology
school, but has not been able to complete the program. Moreover, she explained
that she has not seen her children since September 2011 because the trial court
restricted her visitation after her altercation with Ruthie. And she has not called
the children because Ruthie’s telephone number has changed.
8
Appellant conceded that the trial court had ordered her to comply with the
FSP, which included her obtaining stable employment, a stable place to live, and
participating in anger management classes. She also conceded that under the FSP,
she was not permitted to have anyone with a criminal or DFPS history living in her
home. And although she understood that she had to comply with the FSP to have
her children returned, she admitted that she had not fully complied with the FSP.
Kathy Sasser, the court-appointed guardian ad litem for the children,
testified that appellant stated to her that she understood the requirements of the
FSP, but she had not completed them because of a disagreement with a DFPS
caseworker. Sasser noted that appellant is unable to demonstrate that she has
learned anything from her parenting classes, has had multiple DFPS referrals, and
consistently refuses to accept responsibility for why the children were removed
from her. And appellant is “hostile” and refuses to complete the FSP. Thus,
Sasser “strongly believe[s]” that it is in the best interest of the children that
appellant’s parental rights be terminated.
In her written report to the trial court, which was admitted into evidence,
Sasser recommends that appellant’s parental rights be terminated because, in the
three years that the minor children have been with Ruthie, appellant has refused to
complete important requirements of the FSP. Specifically, appellant has failed or
refused to provide a safe, clean, stable home and obtain employment to support her
9
children. And she has resisted court-ordered anger management classes and taking
the steps necessary to establish a proper and safe parental relationship. Further,
even before the trial court had suspended her visits with the children, her visits
were sporadic. In sum, Sasser opined that “the children will face substantial
dangers to their physical health and emotional development if placed in
[appellant’s] care.” Sasser noted that a favorable home study had been completed
on Ruthie, who is licensed to provide foster care. The children are now in a safe,
healthy, and secure environment, and they have bonded with Ruthie. Thus, Sasser
recommended that the children remain with Ruthie, with the goal that she adopt
them.
V’Lillian Wright, a licensed professional counselor who provides behavioral
therapy for foster children, testified that she provided counseling for appellant’s
minor children in Ruthie’s home from February 2011 to March 2012. She noted
that two of the children are “very emotional” when they talk about the fight at
Ruthie’s house in September 2011. Although the children require a heightened
amount of direction and attention, Ruthie is meeting their needs, and Ruthie’s
home “is a very loving place for all of the children,” who are now involved in
activities and encouraged.
Ruthie testified that when DFPS asked her to pick up the three children from
appellant’s home in May 2010, they were “dirty” and “smelled like urine,” and she
10
was unable to bring any of their clothes with them. Ruthie explained that the
children were behind on immunizations and needed dental care, and one child had
“scaly, bloody eczema” that needed treatment. Now, the children are receiving
regular medical and dental care. And the oldest is in learning resource classes at
school. Ruthie’s home, in which she has lived for two years, has six bedrooms and
four bathrooms. Moreover, she has become a licensed foster parent and receives
money from Fostering Connections to pay for the children’s needs.
Ruthie further testified that prior to May 2010, “every time she visited” any
of appellant’s apartments, the conditions were unhealthy. Appellant had rats living
in her last apartment, including in the oven. The children were routinely found in
dirty diapers and did not appear to have been bathed, and appellant frequently did
not have clean diapers on hand. Ruthie noted that appellant has been evicted at
least four times, has had to move into motels with the children, and she was living
in a motel in 2008 when one of the children was born. Moreover, after the children
had been removed from appellant’s apartment, she visited only approximately five
times and, during the visits, appellant watched television and complained that the
children “got on her nerves.”
Constance Williams, a licensed professional counselor, testified that she
conducted therapy sessions with appellant’s minor children. Appellant’s oldest
child reported that while living with appellant, she experienced frequent hunger
11
and felt uncertainty regarding where she would be living. She explained to
Williams that she and her younger sister were responsible for caring for the three
youngest children in the house, and the child now wants to live with Ruthie.
Williams also explained that Ruthie is a “stable provider,” who offers the children
consistency, structure, and a clean home. Thus, Williams opined that it is in the
children’s best interest to remain with Ruthie.
Dismissal
In her first issue, appellant argues that the trial court erred “in continuing,
rather than dismissing, this refiled parental termination case” because “DFPS
waited a year before attempting to serve the alleged fathers” and “continuing the
case harmed the children by prolonging instability and uncertainty for them.”
Appellant asserts that “in its Motion for Continuance in November 2012, DFPS
cited only the need to give the alleged fathers advance notice of trial,” but “DFPS
served these fathers in the 2010 case and knew it had to serve them in this refile.”
We review a trial court’s grant of an extension of the dismissal date for an
abuse of discretion. See In re M.D.W., No. 02-13-00013-CV, 2013 WL 3326664,
at *4 (Tex. App.—Fort Worth June 27, 2013, pet. denied) (mem. op.) (applying
abuse of discretion standard to question of extension of dismissal date under
section 263.401(b)).
12
The Family Code, in relevant part, provides as follows:
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b), on the first Monday
after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary
managing conservator, the court shall dismiss the suit affecting
the parent-child relationship filed by the department that
requests termination of the parent-child relationship or requests
that the department be named conservator of the child.
(b) Unless the court has commenced the trial on the merits, the
court may not retain the suit on the court’s docket after the time
described by Subsection (a) unless the court finds that
extraordinary circumstances necessitate the child remaining in
the temporary managing conservatorship of the department and
that continuing the appointment of the department as temporary
managing conservator is in the best interest of the child. If the
court makes those findings, the court may retain the suit on the
court’s docket for a period not to exceed 180 days after the time
described by Subsection (a). . . .
(c) If the court grants an extension but does not commence the trial
on the merits before the required date for dismissal under
Subsection (b), the court shall dismiss the suit. The court may
not grant an additional extension that extends the suit beyond
the required date for dismissal under Subsection (b).
TEX. FAM. CODE ANN. § 263.401 (Vernon 2008) (emphasis added).
Here, the record shows that the trial court granted DFPS temporary
managing conservatorship of appellant’s three minor children on December 5,
2011, identifying the statutory dismissal date as December 5, 2012. See TEX. FAM.
CODE ANN. §.263.401(a). On November 2, 2012, DFPS moved for a continuance
“for the newly appointed attorney ad-litems to have 45 days’ notice of trial.” After
a hearing, the trial court, pursuant to section 263.401(b), found that extraordinary
13
circumstances necessitated the children remaining in the temporary managing
conservatorship of DFPS and appointment of DFPS as such continued to be in the
best interest of the children. See TEX. FAM. CODE ANN. § 263.401(b). The trial
court then extended the statutory dismissal date to May 31, 2013, and the trial
commenced on May 14, 2013. See id.
Appellant does not make any record reference revealing that she objected to
the trial court’s extension of the statutory dismissal date. Thus, the issue is not
preserved for our review. See TEX. R. APP. P. 33.1. Moreover, she has not shown
that the trial court abused its discretion in granting the extension. Appellant asserts
that the extension “contravene[s] public policy” in that custody cases must be
afforded “a speedy resolution.” The legislature has, however, specifically provided
for a single statutory extension when the trial court makes the required findings, as
here. See TEX. FAM. CODE ANN. § 263.401(b), (c).
Further, to the extent that appellant complains that the trial court erred in not
dismissing the case, the record does not reflect that she moved for dismissal before
trial on merits commenced. See TEX. FAM. CODE ANN. §.263.402(b) (Vernon
2008); In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009)
(holding that statutory dismissal deadline is procedural, not jurisdictional).
Accordingly, we overrule appellant’s first issue.
14
Sufficiency of the Evidence
In her third through sixth issues, appellant argues that the trial court erred in
terminating her parental rights as to each child because the evidence is legally and
factually insufficient to support the jury’s findings that she knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being, engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered their physical or emotional well-being, constructively abandoned the
children, and failed to comply with the provisions of a court order that specifically
established actions necessary for her to obtain the return of the children. See TEX.
FAM. CODE ANN. § 161.001(1)(D), (E), (N), (O) (Vernon Supp. 2013). In her
seventh issue, appellant argues that the trial court erred in terminating her parental
rights because the evidence is legally and factually insufficient to support the
jury’s finding that termination of her parental rights is in the children’s best
interests. See id. § 161.001(2).
In order to terminate the parent-child relationship under section 161.001, a
party must establish, by clear and convincing evidence, one or more of the acts or
omissions enumerated under section 161.001(1) and that termination is in the best
interest of the child. TEX. FAM. CODE ANN. § 161.001. Both elements must be
established, and termination may not be based solely on the best interest of the
15
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987). “Only one predicate finding under section
161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355,
362 (Tex. 2003).
Standard of Review
A parent’s right to “the companionship, care, custody, and management” of
her children is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). The
United States Supreme Court has emphasized that “the interest of parents in the
care, custody, and control of their children . . . is perhaps the oldest of the
fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530
U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has
also concluded that “[t]his natural parental right” is “essential,” “a basic civil right
of man,” and “far more precious than property rights.” Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]e strictly construe involuntary
termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012).
Because termination of parental rights “is complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination
16
must be clear and convincing before a court may involuntarily terminate a parent’s
rights.” Holick, 685 S.W.2d at 20 (citing Santosky, 455 U.S. at 747, 102 S. Ct. at
1391). Clear and convincing evidence is “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (Vernon
2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of
proof is “clear and convincing,” the Texas Supreme Court has held that the
traditional legal and factual standards of review are inadequate. In re J.F.C., 96
S.W.3d at 256, 264–66.
In conducting a legal-sufficiency review in a parental-rights termination
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm
belief or conviction about the truth of the matter on which the State bore the
burden of proof. See id. at 266. In viewing the evidence in the light most
favorable to the finding, we “must assume that the fact finder resolved disputed
facts in favor of its finding if a reasonable fact finder could do so,” and we “should
disregard all evidence that a reasonable fact finder could have disbelieved or found
to be incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re
J.F.C., 96 S.W.3d at 266).
17
In conducting a factual-sufficiency review in a parental-rights termination
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS
bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable fact finder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266–67. “If, in light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006).
Failure to Comply with Court Order
In a portion of her sixth issue, appellant argues that the evidence is legally
and factually insufficient to support the termination of her parental rights as to each
minor child under Texas Family Code section 161.001(1)(O) because the FSP “did
not ‘establish the actions necessary for the parent to obtain return of the child.’”
She asserts that the FSP “indicated that DFPS’s goal with respect to [her] was “Alt
Family: Relative/Fictive Kin, Adoption” and, therefore, “there was nothing [she]
could do to achieve the return of her children.”
18
Parental rights may be terminated when clear and convincing evidence
establishes that a parent has failed to comply with the provisions of a court order
that specifically stated the actions necessary for the parent to obtain the return of a
child who has been in the permanent or temporary managing conservatorship of
DFPS for not less than nine months as a result of the child’s removal from the
parent under Chapter 262 for the abuse or neglect of the child. TEX. FAM. CODE
ANN. §.161.001(1)(O). Chapter 262 is titled “Procedures in Suit by Governmental
Entity to Protect Health and Safety of Child,” and subchapter B provides the
procedures that DFPS may employ in order to remove a child for abuse or neglect.
Id. §§ 262.001–.309 (Vernon 2008 & Supp. 2012). If a parent has neglected or
endangered her child’s physical health or safety, such that initial and continued
removal are appropriate, the child is considered to be “remov[ed] from the parent
under Chapter 262 for the abuse or neglect of the child.” In re E.C.R., 402 S.W.3d
239, 248 (Tex. 2013).
Appellant does not dispute that the three minor children were in DFPS
custody for at least nine months prior to termination of her parental rights, they
were removed under Chapter 262 for “abuse or neglect,” or she failed to comply
with all the requirements of a court-ordered FSP. Instead, she argues that the FSP
does not comply with subsection (O) because it fails to “specifically establish[] the
actions necessary for [her] to obtain the return” of her children.
19
The trial court’s December 5, 2011 order granting DFPS temporary
managing conservatorship of the children expressly states,
10. Finding and Notice
The Court finds and hereby notifies the parents that each of the
actions required of them below are necessary to obtain return
of the children, and failure to fully comply with these orders
may result in the restriction or termination of parental rights.
11. Compliance with Service Plan:
11.1 [Appellant] is ORDERED, pursuant to § 263.106 Texas
Family Code, to comply with each requirement set out in
the Department’s original, or any amended, service plan
during the pendency of this suit.
(Emphasis added.) Thus, the trial court ordered appellant to comply with the
requirements set out in the FSP and informed her that the actions listed in the FSP
were “necessary to obtain return of the children.”
The FSP provided twelve “task[s]” or “service[s]” that appellant was
required to complete, including “obtain[ing] and maintain[ing] legal and verifiable
employment,” “obtain[ing], pay[ing] for, and maintain[ing] appropriate housing, in
which she [was to be] listed on the lease, for herself and her children,”
“refrain[ing] from allowing anyone with criminal or [DFPS] history to reside in her
home,” and granting DFPS “access to the home for scheduled and unscheduled
visits.” The FSP states that its “purpose is to help [the parent] provide [her] child
with a safe environment.” And it admonishes the parent, “If you are unwilling or
unable to provide your child with a safe environment, your parental and custodial
20
duties and rights may be restricted or terminated or your child may not be returned
to you.”
On April 4, 2012, after a status hearing, the trial court found that appellant
had reviewed and understood the FSP and it had advised appellant that “unless she
[was] willing and able to provide the children with a safe environment, . . . her
parental and custodial duties and rights may be subject to restriction or to
termination or the children may not be returned to her.” And the trial court
adopted the existing FSP as if fully set out in its order. At trial, appellant testified
that she received the FSP, “understood it was a court order,” and “understood that
[she] had to do [her] service in order to get [her] kids back.” Thus, the FSP
specifically established the actions necessary for appellant to obtain the return of
her children, even if as a possessory conservator. And appellant understood that
her performance of the actions listed in the FSP were necessary to obtain the return
of her children.
The record also shows that the trial court appointed DFPS the temporary
managing conservator of appellant’s children on December 5, 2011, and the
termination hearing commenced on May 14, 2013. Thus, appellant’s children were
in the conservatorship of DFPS for not less than nine months. See TEX. FAM.
CODE ANN. §.161.001(1)(O).
21
In addition, DFPS’s evidence in support of its removal of the three minor
children included the affidavit of caseworker Magee, indicating that she had
received a referral for neglectful supervision and physical neglect of appellant’s
children. In her affidavit, Magee detailed her investigation, as well as that
conducted by Lofton, including the same facts that she and Lofton later presented
at trial regarding the unsanitary conditions observed inside appellant’s apartment in
2010 and 2011, i.e., mold, decaying trash, and insects; the children having been left
unsupervised outside the apartment; the children appearing in a sick and dirty
condition; and instances of domestic violence involving appellant. Magee further
testified in her affidavit that the children were in “immediate danger.” From
Magee’s testimony, the trial court determined that there was sufficient evidence to
satisfy a person of ordinary prudence and caution that the three minor children
faced immediate danger to their physical health or safety, an urgent need to protect
them required their immediate removal, and they faced a substantial risk of a
continuing danger if they were returned home. See In re E.C.R., 402 S.W.3d at
248 (relying on caseworker’s affidavit in support of removal request). This
evidence established that the children were in fact removed from appellant under
Chapter 262 for abuse or neglect. See id. at 248–49; see also TEX. FAM. CODE
ANN. §§.161.001(1)(O), 262.001–.309.
22
Further, the trial testimony shows that appellant failed to comply with
material provisions of the FSP, namely, she failed to obtain legal and verifiable
employment, failed to obtain and maintain appropriate housing, allowed a person
with a criminal and DFPS history to reside in her home, and refused to allow DFPS
caseworkers access to her home for inspection. And appellant admitted that she
had not completed all of the requirements of the FSP and understood that the trial
court could terminate her parental rights solely on this basis.
Viewing the evidence in the light most favorable to the jury’s findings, we
conclude that the jury could have formed a “firm belief or conviction” that
appellant 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, who
had been in the temporary managing conservatorship of DFPS for not less than
nine months as a result of the children’s removal from appellant under Chapter 262
for the abuse or neglect of the children. See TEX. FAM. CODE ANN.
§.161.001(1)(O); In re E.C.R., 402 S.W.3d at 249 (concluding that clear and
convincing evidence showed that parent failed to comply with provisions of court
order where parent did not dispute that she “failed to comply with numerous,
material provisions of court orders that specifically required . . . compliance to
avoid restriction or termination of parental rights”); In re J.F.C., 96 S.W.3d at
277–79 (concluding that evidence that parents partially complied with court’s
23
order specifying actions necessary to obtain return of children established as matter
of law that parents failed to comply under section 161.001(1)(O)).
In addition, viewing the evidence in a neutral light, we conclude that a
reasonable fact finder could have formed a firm belief or conviction that appellant
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, who had been in
the temporary managing conservatorship of DFPS for not less than nine months as
a result of the children’s removal from appellant under Chapter 262 for the abuse
or neglect of the children. See In re C.H., 89 S.W.3d at 18–19.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the jury’s finding that appellant failed to comply with the trial court’s
order. See TEX. FAM. CODE ANN. § 161.001(1)(O). We overrule the portion of
appellant’s sixth issue in which she argues that the evidence is legally and factually
insufficient to support termination of her parental rights under section
161.001(1)(O). Thus, we need not address the remaining portions of her sixth
issue or her third, fourth, or fifth issues.
Best Interest
In her seventh issue, appellant argues that the evidence is legally and
factually insufficient to support the jury’s finding that termination of her parental
24
rights is in the children’s best interests because “there is no evidence to support the
finding.” See TEX. FAM. CODE ANN. §.161.001(2).
In determining whether the termination of appellant’s parental rights is in the
children’s best interest, we may consider several factors, including (1) the
children’s desires, (2) the current and future physical and emotional needs of the
children, (3) the current and future physical danger to the children, (4) the parental
abilities of the parties seeking custody, (5) whether programs are available to assist
those parties, (6) plans for the children by the parties seeking custody, (7) the
stability of the proposed placement, (8) appellant’s acts or omissions that may
indicate that the parent-child relationship is not proper, and (9) any excuse for
appellant’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no
pet.). The Holley factors are not exhaustive, and there is no requirement that DFPS
prove all factors as a condition precedent to parental termination. See In re C.H.,
89 S.W.3d at 27.
In regard to the minor children’s desires, Williams testified that the oldest
child referred to hardship, hunger, and uncertainty when she lived with appellant,
and she wished to remain living with her aunt, Ruthie. Although the middle child
missed appellant, she acknowledged that she is “in better care in the care of her
25
aunt.” The youngest child’s desires are not in the record. All three children refer
to Ruthie as “momma.”
In regard to any current and future physical danger to the children, Magee,
Lofton, and Ruthie testified regarding instances of domestic violence that occurred
while the children were present in appellant’s home in May 2010 and September
2011. Magee further testified that unsanitary conditions, which pose a physical
danger to the children, persist at appellant’s home. During her visit to appellant’s
home on November 15, 2011, which was eighteen months after the children had
been removed, Magee noted that the house was still dirty, “smelled like a
dumpster,” and was infested with roaches in the kitchen. There were pots and
plates stacked in the kitchen with food on them. And when Magee attempted to
talk with appellant about the condition of her home, appellant “just laughed.”
Sasser opined that “the children will face substantial dangers to their
physical health and emotional development if placed in [appellant’s] care.”
Although she attempted three times to see the current condition of appellant’s
apartment, she was refused entry. Sasser noted that appellant is unable to
demonstrate that she has learned anything from her parenting classes, she has had
multiple DFPS referrals, and she consistently refuses to accept responsibility for
the children being removed from her care. Also, appellant is “hostile,” and she has
failed or refused to provide a safe, clean, stable home; failed to obtain and maintain
26
employment in order to support her children; and resisted court-ordered anger
management classes and taking the steps necessary to establish a proper and safe
parental relationship. Sasser “strongly” stated her opinion that it is in the best
interest of the children that appellant’s parental rights be terminated.
In regard to the children’s current and future physical and emotional needs,
Wright testified that the children require heightened direction and attention.
Further, the record shows that the two-year-old has asthma and requires nebulizer
treatments. And appellant conceded that she has let her Medicaid coverage lapse.
As for future plans for the children by the parties seeking custody, appellant
testified that she intends to live with the children in her boyfriend’s apartment and
rely on his income and food stamps for support. She has been unemployed since
January 2011, but intends to find a job.
In regard to the stability of the proposed placement, a favorable home study
has been completed on Ruthie. She is licensed to provide foster care and has been
in her home for two years. Sasser has met with the minor children, and she opined
that they are in a safe, healthy, and secure environment. They have bonded with
Ruthie, and Sasser recommended that the children remain with Ruthie, with the
goal that she adopt them. The record supports an implied finding that Ruthie can
provide for the children’s physical and emotional needs.
27
Considering this evidence in the light most favorable to the jury’s finding,
we conclude that the jury could have reasonably formed a firm belief or conviction
that termination of appellant’s parental rights was in the children’s best interests.
And, considering the evidence in a neutral light, the jury could have reasonably
formed a firm belief or conviction that termination of appellant’s parental rights
was in the children’s best interests. Accordingly, we hold that the evidence is
legally and factually sufficient to support the jury’s finding that termination of
appellant’s parental rights was in the children’s best interests.
We overrule appellant’s seventh issue.
Deemed Admissions
In her second issue, appellant argues that the trial court erred in granting
DFPS’s motion to withdraw and amend deemed admissions because “DFPS did
not show, and could not have shown, good cause for withdrawing the admissions,”
appellant “would suffer no undue prejudice as a result of the withdrawal,” or
“presentation of the merits would be subserved by the withdrawal.”
During trial, appellant objected to “any testimony” by DFPS caseworker
Lofton “regarding negligence or abuse” of the children because it was “contrary to
[DFPS’s] admissions,” and the trial court overruled the objection. Appellant
asserted that DFPS had failed to answer all of her requests for admission, noting
that although she had propounded thirty requests, which were not numbered, DFPS
28
did not respond beyond the thirteenth request. Thus, appellant concludes, the
matters raised in the unanswered requests were conclusively established against
DFPS. Specifically, appellant requested that DFPS not be allowed to put on
evidence contrary to requests for admission numbers twenty through thirty. The
included requests concerned whether “the children exhibited . . . evidence of abuse
or neglect at the time [DFPS] filed this suit,” “[i]t is in the best interest of the
children to live with [appellant],” and “[i]t is . . . detrimentally harmful for the
children to live with [appellant].”
In regard to appellant’s objection, the trial court noted that it appeared that
the pages containing the requests had been cut off during a facsimile transmission,
and DFPS asserted that it, prior to appellant’s in-court objection, did not know of
the missing pages. It then requested leave to file a motion to withdraw the
admissions, which the trial court granted.
The next day, DFPS filed its motion to which it appended the affidavit of
Assistant County Attorney D’Ann Carlson, who testified that the failure to timely
respond to appellant’s requests for admission was a “mistake.” At the hearing on
the motion, Carlson, on the record, explained that the last two pages of appellant’s
requests for admission had been inadvertently omitted when DFPS transferred the
questions to the document that it used to respond. Carlson argued that appellant
would not be prejudiced by the withdrawal of the admissions because, for instance,
29
appellant could not have relied on DFPS admitting that it was in the best interest of
the children to be returned to appellant because it ran contrary to DFPS’s position
at all the prior hearings, permanency reports, and in their responses to
interrogatories and requests for production.
Appellant responded that DFPS should have realized the mistake, Carlson’s
affidavit testimony was incompetent because it lacked any statement of the facts
surrounding DFPS’s mistake, and appellant was prejudiced because she relied
upon the admissions in preparing her defense.
The trial court found that DFPS had shown good cause for not fully
responding to appellant’s requests for admission, appellant would not be surprised
or prejudiced by DFPS’s amended answers, and presentation of the trial would be
served by the withdrawal because the jury would otherwise be misled.
When a party does not serve responses to requests for admissions within
thirty days, the matters in the requests are deemed admitted against that party. TEX.
R. CIV. P. 198.2; Wal–Mart Stores, Inc., v. Deggs, 968 S.W.2d 354, 355 (Tex.
1998). A matter admitted is conclusively established unless the trial court permits
withdrawal or amendment of the admission. TEX. R. CIV. P. 198.3. And a trial
court has broad discretion to permit or deny withdrawal of deemed admissions, but
it may not do so arbitrarily, unreasonably, or without reference to guiding rules or
principles. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005). Withdrawal or
30
amendment of an admission is permitted on findings of good cause, the party
relying on the deemed admission will not be unduly prejudiced, and presentation of
the merits will be served by the withdrawal. See TEX. R. CIV. P. 198.3; Deggs, 968
S.W.2d at 356.
“Good cause is established by showing [that] the failure involved was an
accident or mistake, not intentional or the result of conscious indifference.”
Wheeler, 157 S.W.3d at 442. Here, Carlson argued, without objection, that the last
two pages of appellant’s requests for admissions had been inadvertently omitted
when DFPS transferred the requests to the document that DFPS used to respond.
She explained that she was unaware that pages had been omitted until appellant
raised the issue of deemed admissions at trial. The trial court could have
concluded that the failure involved resulted from an accident or mistake and was
not intentional or the result of conscious indifference. See id. “Even a slight
excuse will suffice. . . .” N. River Ins. Co. of N.J. v. Greene, 824 S.W.2d 697, 700
(Tex. App.—El Paso 1992, writ denied).
In support of her assertion that DFPS cannot meet its burden to show good
cause, appellant relies on Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 807
(Tex. App.—Houston [1st Dist.] 1999, pet. denied). In Morgan, however, the
plaintiff notified the defendant that it had failed to respond to all of the plaintiff’s
requests for admission, and the defendant again failed to respond. Id. Here, DFPS
31
was not aware that certain pages of appellant’s requests for admission were
missing until appellant raised the matter at trial.
“Undue prejudice depends on whether withdrawing an admission or filing a
late response will delay trial or significantly hamper the opposing party’s ability to
prepare for it.” Wheeler, 157 S.W.3d at 443. “[P]resentation of the merits will
suffer (1) if the requesting party cannot prepare for trial [or] (2) if the requestor
can prepare but the case [will be] decided on deemed (but perhaps untrue)
facts . . . .” Id. at 443 n.2. Appellant argues that she was prejudiced because she
relied on the deemed admissions in preparing her case and would not be prepared
to continue trial if the admissions were withdrawn.
The trial court concluded that either appellant’s counsel or appellant had
appeared at “every hearing” held in the case and, “in every single one of those
hearings,” as well as in every progress and permanency report that had been filed,
DFPS had presented a position contrary to the admissions that appellant claimed
she relied on. Appellant agreed, stating that she “definitely” knew that DFPS was
“opposed to [her] having the children, yes.”
Moreover, appellant asserts that her requests for admission “were designed
to ‘eliminat[e] matters about which there [was] no real controversy,’” citing
Wheeler, 157 S.W.3d at 443 (noting that requests for admission are intended to
address uncontroverted issues). The admissions upon which appellant seeks to
32
rely, however, embrace controverted issues that go to the heart of this case,
namely, whether “the children exhibited . . . evidence of abuse or neglect at the
time [DFPS] filed this suit,” “[i]t is in the best interest of the children to live with
[appellant],” and “[i]t is . . . detrimentally harmful for the children to live with
[appellant].” A party may not use deemed admissions to try to preclude a
presentation of the merits. See id. Accordingly, we hold that the trial court did not
abuse its discretion in allowing DFPS to withdraw and amend its deemed
admissions.
We overrule appellant’s second issue.
Comment on the Weight of the Evidence
In her eighth issue, appellant argues that the trial court deprived her of her
right to a fair trial because it “improperly commented on the weight of the
evidence.” Appellant asserts that when DFPS non-suited one of the alleged
fathers, the trial court “impermissibly offered [its] personal shock that someone
[appellant] had alleged was a father was proven not to be.” Appellant argues that
“[t]he prejudicial nature of this comment becomes most clear in the context of the
trial strategy against [appellant], which was to paint her as a sexual deviant who
slept with many unknown men.” She asserts that the trial court’s remarks probably
prejudiced the jury and caused the rendition of an improper verdict. See TEX. R.
APP. P. 44.1.
33
The record shows that the surrounding context of the trial court’s
complained-of comment to the jury was as follows:
Good morning, ladies and gentlemen. Thank you very much for your
patience. I want to let you know no one here has been goofing off. We’ve
actually been working on several issues over several days. We had
something happen that I’ve never seen happen in about 15 years that I’ve
been working on these cases. One of the folks that was alleged to be an
unknown father was actually located in the middle of trial. We’ve been
having DNA done and actually had that person come up here, had him
tested, had the kids tested. Long story short, he was ruled out this morning
by DNA, so he is no longer a party to this suit. As you can see, [counsel for
alleged father] who represented that person’s interest is no longer here. Just
wanted y’all to know kind of what was going on. And for the record, I think
[counsel for alleged father] said in 46 years of handling these types of cases,
he’s never seen something like this happen actually at trial.
(Emphasis added.)
The record does not show that appellant objected to the trial court’s
comments; therefore, no issue has been preserved for appeal. See TEX. R. APP. P.
33.1.
Accordingly, we overrule appellant’s eighth issue.
Fact Witness Testimony
In her ninth issue, appellant argues that the trial court erred in allowing
V’Lillian Wright to testify because DPFS did not qualify her as an expert and her
testimony was not based on personal knowledge.
A trial court’s decision to admit evidence is reviewed under an abuse of
discretion standard. In re J.P.B, 180 S.W.3d 570, 575 (Tex. 2005). A trial court
34
abuses its discretion when it acts without reference to any guiding rules and
principles or in a way that is arbitrary and unreasonable. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). And a party complaining of
error in the admission of evidence must also show that the trial court’s error
probably caused the rendition of an improper judgment. See TEX. R. APP. P.
44.1(a)(1); Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529, 532 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied).
Appellant asserts that the trial court acknowledged in general that Wright did
not “have personal knowledge.” The record reflects that the trial court ruled that
Wright did not “have personal knowledge of” whether the children saw anything
during the domestic violence incident at Ruthie’s house in September 2011.
Wright testified that she talked with two of the children after the incident, and they
were “present” during the incident and “very concerned about the feelings of Aunt
Ruthie . . . .” Wright did not testify regarding whether the children saw anything.
Appellant next asserts that the trial court erred in allowing Wright to “offer
her professional judgment of what [appellant] needed to do to see her children
returned.” The record shows that although Wright discussed parenting in general,
she specifically declined to offer an opinion regarding “concrete, specific things”:
[DFPS]: In order for [appellant] to get her children back, returned
to her care, what would you like to see as the children’s
therapist?
35
[Wright]: I think [appellant] needs to be aware of her parenting
style and to understand if it is effective for raising her
children in a more sound and productive way that they
can become good citizens. And if she is aware of that,
and she can prove that she can do parenting in a manner
that the children would be safe and productive, then I
would like to see it happen because every parent would
love to have their children, but parenting is hard.
....
[DFPS]: So what concrete, specific things would you like to see in
place before the children would be returned to her care?
[Wright]: I don’t know [appellant], so I don’t know what else is all
involved. I only work with the children, but I don't think
it is my say what she needs to do and really know exactly
what steps she needs to take.
(Emphasis added.)
Because the record does not support appellant’s assertions, she has not
shown that the trial court abused its discretion in allowing Wright’s testimony.
Accordingly, we overrule appellant’s ninth issue.
Business Records
In her tenth issue, appellant argues that the trial court erred in not striking
certain therapy notes regarding the children because it “acknowledged that it had
admitted inadmissible evidence.”
Constance Williams, a licensed professional counselor employed by
Kinghaven Counseling, testified that she was the therapist for the three minor
children, and counsel for the children sought to admit treatment documents from
Williams’s individual sessions with them. Williams testified that she is familiar
36
with the records, as it is Kinghaven’s regular practice to reduce her notes to written
records, the records are kept in the regular course of business, and the records were
created at or near the time of the events in question. Appellant objected, “Judge, I
don’t think the entire predicate has been laid.” Without making an express ruling,
the trial court admitted the records into evidence.
It is well established that “a general objection to an insufficient predicate”
fails to preserve error; rather, a specific objection must be made. Seymour v.
Gillespie, 608 S.W.2d 897, 898 (Tex. 1980). Thus, appellant’s general objection
that she did not “think the entire predicate ha[d] been laid” did not preserve the
issue. See TEX. R. APP. P. 33.1; Gillespie, 608 S.W.2d at 898; see also In re S.H.,
10-02-086-CV, 2004 WL 254011, at *4 (Tex. App.—Waco Feb. 11, 2004, no pet.)
(mem. op.) (holding that general complaint that Department did not lay predicate
for admission of psychological report on child did not preserve error).
Accordingly, we overrule appellant’s tenth issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
37
in the Interest of A.A., D.A. and J.A., Children
Combined Opinion