in the Interest of A.A., D.A. and J.A., Children

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

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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

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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

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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

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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.

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 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

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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,

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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

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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

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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.

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 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