COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00335-CV
IN THE INTEREST OF D.A.T., K.J.T.,
T.D.T., AND S.S.T., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION ON REHEARING1
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After considering Appellant I.J.T.’s motion for rehearing, we deny the
motion but withdraw our prior opinion and judgment of January 26, 2012, and
substitute the following.
I. Introduction
Appellants I.J.T. (Father) and W.T. (Mother) appeal the trial court’s
judgment terminating their parental rights to four of their children. After a bench
trial, the trial court found by clear and convincing evidence that Father and
1
See Tex. R. App. P. 47.4.
Mother had (1) engaged in conduct or knowingly placed the children with persons
who had engaged in conduct which endangered the physical or emotional well-
being of the children, (2) knowingly placed or knowingly allowed the children to
remain in conditions or surroundings which endangered their physical or
emotional well-being, and (3) previously had their parent-child relationships
terminated with respect to another child based on these same grounds.2 The trial
court also found that termination of Mother’s and Father’s parent-child
relationships would be in the children’s best interest and appointed the
Department of Family and Protective Services (the Department) as the children’s
permanent managing conservator. Father challenges the factual sufficiency of
the evidence in four issues, and Mother’s court-appointed counsel has filed a
motion to withdraw and an Anders brief in support stating that after diligently
reviewing the record, he believes that any appeal by Mother would be frivolous. 3
Although given notice and an opportunity to file a pro se brief, Mother did not do
so. We affirm the trial court’s judgment terminating Father’s and Mother’s
parental rights.
2
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (M) (West Supp. 2011).
3
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
2
II. Background
Mother and Father have six children together. The four children involved
in this case are D.A.T., K.J.T., T.D.T., and S.S.T. At the time of trial in
September 2010, D.A.T. was eleven years old, K.J.T. was nine years old, T.D.T.
was eight years old, and S.S.T. was five years old. In separate proceedings in
2008 in Lubbock County, Texas, Mother’s and Father’s parental rights to two
other children, H.T. and D.T., were terminated.
Ashleigh Baumgarten is a Department caseworker in Lubbock. She
served as Mother and Father’s caseworker for almost three years beginning in
approximately August 2005, and she testified that she was familiar with Mother
and Father’s lengthy history with the Department. She testified that they had
exhibited a pattern of neglectful supervision of their children and that the
Department had been concerned for years about the manner in which they
supervised (or failed to supervise) their children. Mother and Father’s first
Department referral was in December 1997 and involved an allegation of
neglectful supervision; the report alleged that Mother and Father’s two year old
had sprayed oven cleaner in their nine-month old’s face.4 Baumgarten also
testified that Mother and Father had Department referrals in March 2002 for
alleged neglectful supervision and physical abuse; July 2002 for alleged
neglectful supervision; August 2002 for alleged medical neglect, physical abuse,
4
Neither child involved in the December 1997 incident is involved in this
case.
3
physical neglect, and negligent supervision; August 2003 for alleged negligent
supervision and physical neglect; August 2004 for alleged negligent supervision,
physical abuse, and medical neglect; September 2004 for alleged negligent
supervision; and two in March 2005, both for alleged negligent supervision and
one for alleged unsanitary living conditions. Mother and Father also tested
positive “on numerous occasions” for both marijuana and cocaine during the
Lubbock County case.
Baumgarten testified that several of the cases against Mother and Father
were closed because abuse had been ruled out, but the Department remained
concerned about the level of supervision in light of the injuries the children had
sustained. Baumgarten also testified that the children are very physically
aggressive toward one another, that Mother and Father have a difficult time
controlling them, and that the family visitations were chaotic because of the
children’s behavior and the parents’ inability to control them.
The trial regarding the termination of Mother’s and Father’s parental rights
to H.T. was in May 2008. Baumgarten testified that she and the Department had
decided about that same time to remove Mother and Father’s other children and
proceed toward termination of their parental rights. However, she and the
Department lost contact with Mother and Father in June 2008 after they were
evicted from their apartment. After an investigation, Baumgarten was told by a
relative that Mother and Father had possibly moved with their children to the Fort
Worth area.
4
Sandra Boyle is a Department investigator in Fort Worth and investigated a
referral alleging neglectful supervision by Mother in September 2009. Boyle
testified that the apartment where Mother lived with the children was not clean;
had roaches; and did not have food, personal hygiene products, or a place for
the children to sleep. Mother also field-tested positive for cocaine.
Boyle testified that the three oldest children, D.A.T., T.D.T, and K.J.T., fled
the apartment through the second-story balcony when they realized she worked
for the Department. The children later told her they had been told to run if they
saw the police or any Department workers. Boyle testified that Mother told her
the family had moved to Fort Worth to avoid further termination proceedings in
Lubbock. Mother also told Boyle that the children had not been enrolled in
school for more than a year, that she had not applied for food stamps, and that
the children had not been to the doctor or taken their medication.
Boyle testified that she removed S.S.T. the day she visited the apartment
and that Mother called three days later and agreed to surrender the other three
children to Department custody. Father accompanied Mother when they brought
the children; he denied living in the apartment with Mother but said he did not
want to answer any other questions. Boyle said the children gave conflicting
accounts of how often Father lived in the apartment with them.
Boyle testified that D.A.T., T.D.T, and K.J.T. had an extensive amount of
scars and fresh, suspicious looking marks all over their bodies. She testified that
she did not get an explanation for the marks, but she agreed that none of the
5
children required medical attention, that the marks were possibly consistent with
marks that kids might receive while rough-housing, and that the children did not
appear underweight or malnourished.
Ildiko Balla conducted psychological evaluations of Mother and Father.
She testified that Father has difficulty reading and writing and is borderline
intellectual functioning. He has difficulty paying attention and in dealing with and
parenting in new situations. Balla also testified that Father has anxiety issues
and depressive disorder and that he needs assistance making legal, medical,
and financial decisions. Balla testified that Father expressed how much he
misses his children, that he regrets not being there for them more, and that he
wanted to be a better father. Balla also testified that it is possible that Mother
could provide the assistance that Father requires.
Constance Burdick is a counselor and clinical social worker. She had met
with the family on a weekly basis during the two months preceding the trial.
Burdick testified that Mother is the spokesperson for the couple and that she
often answers questions directed to Father. She testified that Mother and Father
always had an excuse or explanation for their actions or inactions instead of
accepting responsibility, and she said there is no reason to continue counseling if
Mother and Father cannot accept that improvement is possible. Burdick testified
that Mother and Father had not admitted that they could improve their parenting
and that Mother and Father had made very little progress after six counseling
sessions. Burdick acknowledged that Father had not expressly denied poor
6
parenting and that, to keep the children, Father was willing to leave Mother if she
could not stay off of drugs. But Burdick qualified her testimony by saying that
Father cannot raise the children alone without assistance and that Mother is not
providing the assistance he needs.
Shawna Wells-Lewis served as the Department caseworker during much
of the present case. She testified that both parents tested positive in March 2010
for cocaine, that Father gave her no contemporaneous explanation, and that
Mother claimed that grease in Father’s hair caused the positive result. The
March 2010 drug test was Father’s only positive result, and Wells-Lewis agreed
that Father’s follow-up hair follicle test was negative and that drugs were not a
daily problem for him. Wells-Lewis testified, however, that the parents had
shown a pattern beginning with the Lubbock County proceedings of staying clean
for a time but relapsing into occasional drug use.
Wells-Lewis testified that both parents had attended anger management
classes and that anger management was no longer a concern. She also agreed
that Mother and Father had not caused the children’s scars and that the children
often injure one another. Wells-Lewis also confirmed both Mother’s and Father’s
employment with J.T. Kennard. She testified, however, that Mother and Father
had been unsuccessfully discharged from homemaking services on one occasion
and family counseling on two occasions.
Wells-Lewis testified that the family had visitation every two weeks for an
hour and a half. Mother and Father consistently attended the visitations, but
7
Wells-Lewis personally supervised the visitations because they were so chaotic.
The children were aggressive with one another, the parents could control only
one child at a time, and the parents did not pay attention to the risks that their
children could be injured. At one visitation at a playground, Father went to a
different playground area to play tic-tac-toe by himself. Wells-Lewis testified that
this visitation was similar to most of the other visitations.
Wells-Lewis described D.A.T. as more withdrawn than the other children
during visitations, saying that he “takes on more of the parental role.” She
testified that D.A.T. “loves his parents very much, and he always wants [Mother]
to braid his hair.” She described S.S.T. as very withdrawn during recent
visitations and said that she had stayed to herself drawing pictures. Wells-Lewis
testified that T.D.T. and K.J.T. look forward to visitations, hang all over their
parents during the visits, and fight for Mother’s and Father’s attention. She
testified that all of the children love their parents and want to return home.
Wells-Lewis acknowledged that the children had been in four foster homes
in the previous year, but she said three of those placement changes were due to
the children’s behavioral problems. D.A.T. and S.S.T. live together, and T.D.T.
and K.J.T. each live in different foster homes. T.D.T. and K.J.T. initially lived with
D.A.T. and S.S.T. but were moved because of their behavior. Wells-Lewis
agreed that it is not wise to continually move the children because of their
adjustment disorders.
8
Wells-Lewis testified that S.S.T. is the best-behaved of the children but
that she “has a difficult time with no and she screams and hollers and has
tantrums and can be very bossy and will bully the others.” She testified that
K.J.T. has “severe behavior issues”; that he will scream, throw tantrums, scratch
himself, try to hurt himself; and that “he will go on for an hour at a time when he
doesn’t get his way, . . . even try[ing] to destroy property.” D.A.T. lies, bullies
other children, gets into fights at school, and has tried to get S.S.T. to steal for
him. T.D.T. also fights and scratches himself. He will often have meltdowns “to
where he can’t function, and he’ll just scream and scratch himself and not be
able to function.” Wells-Lewis categorized D.A.T’s. and S.S.T.’s required level of
care as moderate and T.D.T.’s and K.J.T.’s level of care as specialized. She
testified that D.A.T.’s behavior had improved significantly in a foster home and
that T.D.T. and K.J.T. had experienced small improvements but were still
scratching themselves eleven months after removal.
Wells-Lewis testified that she had looked into several placement options
for the children with family members and friends but that none were appropriate.
For example, B.T. left D.A.T. in a car by himself while shopping; D.W.F. and
C.T.F. had allowed Mother and Father contact with the children without
Department supervision; K.M. and E.P. refused placement; J.W., L.W., and V.A.
were denied placement because of a history with the Department; S.F. twice
withdrew from the home study; N.T. had an open investigation concerning
9
neglectful supervision; and H.T. and D.T.’s parents refused placement. 5 The
children’s current foster parents do not want to adopt, but Wells-Lewis testified
that there are services available to work with the children and any prospective
adoptive parents that will be beneficial and make the children adoptable. In
addition, Wells-Lewis testified that although the children were not easily
adoptable, she planned to enroll the children in an intensive adoption program to
facilitate placement.
Wells-Lewis testified that the children have a special need for a stable and
very secure environment because of their behavioral issues and that Mother and
Father cannot safely parent the children. In her opinion, Mother and Father have
been offered all of the services that can be offered. They completed some of
their service plan, but they are not demonstrating the skills they should have
learned from working the service plan. Wells-Lewis testified that she is
concerned about Mother’s and Father’s ability to provide a stable, clean, and
safe environment for the children; their lengthy history with the Department; their
drug use; and their consistent failure to provide for the children. She testified she
believes, given Mother’s and Father’s lack of improvement and drug history and
despite the strong bond between them and their children, that it is in the
children’s best interest to terminate Mother’s and Father’s parental rights.
5
Mother’s and Father’s parental rights to H.T. and D.T. were terminated in
the Lubbock County proceedings in 2008.
10
Lara Hastings is a psychologist. She conducted psychological evaluations
of each child. She also conducted a sibling assessment with the goal of
determining the best way to work with the children because of their strong bond
but frequent fighting. In the sibling assessment, Hastings determined that sibling
therapy could not succeed with all four until K.J.T. and T.D.T. can stabilize their
behavior and productively participate. In fact, Hastings testified that she felt
K.J.T. and T.D.T. had deteriorated since she had conducted individual
psychological assessments approximately nine months earlier.
Hastings testified that T.D.T. has an adjustment disorder with behavioral
and emotional disturbances. He experiences distress from being separated from
Mother and “possibly both of his parents,” and he experiences stress from his
home environment. T.D.T. also has depressive disorder that manifests itself in
acting out, anger, and suicidal ideations, and it causes him to be emotionally
overwhelmed. Hastings testified that T.D.T. may also have attention deficit,
hyperactivity disorder (ADHD) and may be borderline intellectual functioning and
that those things need to be ruled out or confirmed.
Hastings testified that D.A.T. has adjustment disorder that manifests with
emotional and behavioral disturbances. K.J.T. has the same adjustment disorder
with similar manifestations, but he also has ADHD. Math disorder, reading
disorder, and borderline intellectual functioning also need to be confirmed or
ruled out for K.J.T. S.S.T. is the best-adjusted of all of the children, but she also
11
has adjustment disorder with emotional distress manifestations and is “perturbed”
by being separated from Mother.
Hastings testified that all of the children lack awareness of appropriate
boundaries and that their home environment before entering foster care
contributed to their adjustment disorders. She also testified that each of the
children’s adjustment disorder could be treated through additional therapy.
Elvina Hiatt is the court-appointed special advocate (CASA) for the
children. She testified that Mother’s and Father’s past drug use concerns her
and that she worries about keeping the children in a status where they could
ultimately be returned to their parents. Hiatt also expressed concern over
Mother’s and Father’s lack of progress after working their service plan and
testified that she does not believe Mother and Father will ever change since they
have had years of Department history without change.
Hiatt described D.A.T. as a shy child who is respectful of his foster mother
and who seems to be doing well. She described S.S.T. as very open and
talkative, dramatic and creative, very sweet, and doing well in foster care. Hiatt
testified that K.J.T. is more active and less able to control his behavior. She
testified that he seems calmer in his newest foster placement but acknowledged
that he had not been there long enough to consider his behavioral change
permanent. Hiatt described T.D.T. as extremely shut down toward her initially
but that he had opened up over time. She said, however, that “something
12
happened,” and T.D.T. reverted back to being shut down. He opened up again
after being transferred to a therapeutic foster home.
Hiatt also testified about each of the children’s progress in school. S.S.T.
is on target and doing well. D.A.T. is one grade-level behind and reads two
years behind for his age, and T.D.T. will probably repeat first grade. K.J.T. is one
grade-level behind for his age, and he was recently placed in special education
classes.
Hiatt testified that the children are active, rowdy, and rough during
visitations and that although Mother yells directives to them, they largely ignore
her. She testified that Father is not very active in the visitations and will
occasionally play with the children, and she said that the children do not
approach Father to interact with him. Hiatt testified that Father will occasionally
discipline the children but that they do not usually respond unless Mother also
gets involved. She agreed that Father had been more active and involved with
the children during recent visitations, but she testified that his parenting skills
seem not to have progressed. Hiatt also testified that, in her opinion, the children
separate well from their parents after visitations.
Hiatt testified that K.J.T. talks about his parents a lot and wants to go
home. D.A.T. says he wants to go home, but when he does so, he does not
make eye contact, speaks very softly, and acts as if he is not being honest.
Hiatt recommended termination of Mother’s and Father’s parental rights.
She does not believe Mother and Father can provide a safe environment for the
13
children, and she testified that she believes the children have better opportunities
in foster care than Mother and Father can provide.
Mother testified that Father had recently been very helpful by becoming
more involved with the children’s discipline and that she had learned in parenting
classes that both parents must be involved. Mother also testified that she had
learned in homemaking classes the importance of setting priorities and of
practicing financial stability. She testified that she and Father can provide more
stability for the children than before because they have steady employment as
well as extended family and their church to support them. Mother acknowledged
that she and Father do not currently have any money in a bank account, that they
would require government assistance, and that they would have to find a larger
place to live. She testified, however, that she had already located a larger
apartment for the same amount of monthly rent and that her boss had offered to
advance her the money to buy beds for the children.
J.T. Kennard testified that he is Mother and Father’s pastor and employer.
Mother and Father have worked for him in his junkyard for approximately two
years. Kennard testified that Mother and Father are good parents, that they
consistently attend work, and that he allowed them to miss work when they
attended appointments for their service plan. He also testified that Mother and
Father maintain a home cleaner than his own, but he acknowledged that he had
never been inside their apartment and had only been to their apartment to pick
them up for work or for church.
14
Father testified that he does not like to talk much and that he had always
been that way. He testified that he has supported his family since he began
working for Kennard, and he expressed his belief that he could care for the
children without Mother’s help if necessary. Father also testified that he does not
think the children have behavior problems and that he thinks he controls them
well enough during visitations. Father acknowledged that he does not have a
driver’s license, and he denied using cocaine in March 2010, saying that he
tested positive because he had associated with others that had used cocaine.
III. Applicable Law
A parent’s rights to “the companionship, care, custody, and management”
of his or her children are constitutional interests “far more precious than any
property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
15
proceedings and strictly construe involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may
not be based solely on the best interest of the child as determined by the trier of
fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In
re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).
Evidence is clear and convincing if it “will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be
established.” Id. § 101.007 (West 2008). Due process demands this heightened
standard because termination results in permanent, irrevocable changes for the
parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
16
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated subsections (D) and (E) of section 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
IV. Father’s Appeal
The trial court found that Father had (1) engaged in conduct or knowingly
placed the children with persons who had engaged in conduct which endangered
the physical or emotional well-being of the children, (2) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endangered their physical or emotional well-being, and (3) previously had his
parent-child relationship terminated with respect to another child based on these
same grounds. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (M). Father
argues in his first two issues that the evidence is factually insufficient to support
the section 161.001(1)(D) and (E) findings, and he argues in his third issue that
the Department’s pleadings do not support the section 161.001(1)(M) finding.
17
A. Endangerment Findings
Father argues in his first and second issues that the evidence is factually
insufficient to support the trial court’s section 161.001(1)(D) and (E) findings.
1. Applicable Law
“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under section 161.001(1)(D), it is necessary to examine evidence
related to the environment of the children to determine if the environment was the
source of endangerment to the children’s physical or emotional well-being.
J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child. In
re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For
example, abusive or violent conduct by a parent or other resident of a child’s
home may produce an environment that endangers the physical or emotional
well-being of a child. See id. at 776–77; Ziegler v. Tarrant Cnty. Child Welfare
Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.).
Parental and caregiver illegal drug use and drug-related criminal activity likewise
supports the conclusion that the children’s surroundings endanger their physical
or emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San
Antonio 1998, pet. denied).
Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the children’s physical well-being was the direct
18
result of the parent’s conduct, including acts, omissions, or failures to act. See
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).
Additionally, termination under (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the children or that the children actually suffer injury. Boyd, 727
S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the children’s
well-being may be inferred from parental misconduct standing alone. Boyd, 727
S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004,
pet. denied).
2. Discussion
Baumgarten, Mother and Father’s caseworker in Lubbock, described
Mother and Father’s lengthy history with the Department, their nine Department
referrals between 1997 and 2005, and their drug use. Boyle, the investigator in
Fort Worth, testified that the children had not been enrolled in school for more
than a year in 2009, that Mother had not applied for food stamps, and that the
children had not been to the doctor or taken their medication. Father denied
living in the apartment with Mother and the children at the time but declined to
answer additional questions, and the children gave conflicting accounts of how
often Father lived in the apartment with them.
19
Burdick, the counselor for the family, testified that Mother and Father
always had an excuse or explanation for their actions or inactions instead of
accepting responsibility, and she said there is no reason to continue counseling if
Mother and Father cannot accept that improvement is possible. Burdick
acknowledged that Father had not expressly denied poor parenting, but she
testified that Father cannot raise the children alone without assistance.
Although she agreed that drugs were not a daily problem for Father,
caseworker Wells-Lewis testified that both parents tested positive in March 2010
for cocaine, that Father gave her no contemporaneous explanation, and that
Mother claimed that grease in Father’s hair caused the positive result. Wells-
Lewis also testified, however, that both parents had a pattern of staying clean for
a time but relapsing into occasional drug use.
Wells-Lewis described the children as aggressive with one another, and
she testified that neither parent pays attention to the risks that their children could
be injured. She also testified that Mother and Father cannot safely parent the
children. In her opinion, Mother and Father have been offered all of the services
that can be offered. Although they completed some of their service plan, they
have not, in her opinion, demonstrated the skills they should have learned from
working the service plan. Hiatt, the CASA, also expressed concern over
Mother’s and Father’s lack of progress after working their service plan and
testified that she does not believe Mother and Father will ever change since they
have had years of Department history without change. Father testified that he
20
does not think the children have behavior problems and that he controls them
well enough during visitations.
After reviewing the entire record, we hold that a factfinder could reasonably
form a firm conviction or belief that Father had engaged in conduct or knowingly
placed the children with persons who had engaged in conduct which endangered
the physical or emotional well-being of the children or that Father had knowingly
placed or knowingly allowed the children to remain in conditions or surroundings
which endangered their physical or emotional well-being. See Tex. Fam. Code
Ann. § 161.001(1)(D), (E); C.H., 89 S.W.3d at 28. We therefore overrule Father’s
first and second issues.6
B. Best Interests of the Children
Father argues in his fourth issue that the evidence is factually insufficient
to support the trial court’s finding that termination of his parental rights to the
children is in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(2)
(requiring clear and convincing evidence “that termination is in the best interest of
the child”).
6
Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination. In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus
need not address Father’s third issue. See id.; see also Tex. R. App. P. 47.1,
47.4.
21
1. Applicable Law
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial
report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations
of the child, the child’s parents, other family members, or others who have
access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or
others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and
complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time;
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(12) whether the child’s family demonstrates adequate parenting skills,
including providing the child and other children under the family’s care
with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities;
and
(13) whether an adequate social support system consisting of an extended
family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116. Other, nonexclusive factors that the
trier of fact in a termination case may use in determining the best interest of the
child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
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(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
2. Discussion
The children range in age from eleven to five years old, and each is
emotionally vulnerable. K.J.T. has ADHD, and T.D.T. has a depressive disorder
that manifests through suicidal ideations and anger. Each child has an
attachment disorder, takes medication, and has behavioral issues. Three of the
four children are not on pace academically. Wells-Lewis testified that the
children have a special need for a stable and very secure environment. See
Holley, 544 S.W.2d at 372 (listing “the emotional and physical needs of the child
now and in the future” as relevant to best interest determination).
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Father has difficulty reading and writing, is borderline intellectual
functioning, and needs assistance with making legal, medical, and financial
decisions. He also has anxiety issues, a depressive disorder, and difficulty
parenting in new situations. See In re T.T.F., 331 S.W.3d 461, 488 (Tex. App.—
Fort Worth 2010, no pet.) (considering mother’s inability to recognize risk to her
child and mother’s intellectual capacity in best interest analysis). Mother is the
spokesperson for the couple. Father is often detached, even at visitations, but
had exhibited improvement just before trial. But see In re Z.C., 280 S.W.3d 470,
476 (Tex. App.—Fort Worth 2009, pet. denied) (explaining that a father’s “efforts
to improve his ability to effectively parent on the eve of trial [were] not enough to
overcome a decade of poor parenting and neglect”).
Father expressed regret about being separated from his children, a desire
to be a better father, and a willingness to leave Mother if necessary, but Burdick
testified that Father cannot raise the children alone without assistance. Father
also tested positive for cocaine six months before trial. See Tex. Fam. Code
Ann. § 263.307(b)(8) (listing history of drug use as relevant best interest factor).
The children are aggressive with one another, and Mother and Father do
not seem to grasp the risk of injury to their children in various settings, including
supervised visitations. There is no evidence that Mother or Father physically
abused the children, but the children apparently injure one another. Mother and
Father had nine Department referrals while living in Lubbock, and all of the
referrals involved neglectful supervision. The children were removed from
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Mother and Father twice in Lubbock and might have been removed again, but
the family moved to Fort Worth. When the children were removed in Fort Worth
in 2009, they had extensive scarring and bruising on their bodies.
Father has not denied poor parenting, but there is testimony that he and
Mother always offer excuses rather than an acknowledgement of responsibility.
Mother and Father had not admitted that they could improve their parenting, and
Father denied at trial that the children have behavioral problems. There is also
testimony that Mother and Father had not demonstrated the skills they should
have learned through the service plan and that they have been offered all of the
services that can be offered. See id. § 263.307(b)(10), (11) (listing as relevant
best interest factors the parents’ willingness to accept and complete services
offered and to effect positive changes within reasonable time).
Father testified that he has support available from family and friends, and
Mother testified that she and Father could provide more stability than before
because of their steady employment, their extended family, and the support
offered by their church. Their employer has also offered assistance in the form of
advances on their wages when necessary to buy things for the children. See id.
§ 263.307(b)(13) (listing social support system as relevant best interest factor).
Mother and Father, combined, earned approximately $37,440 per year and had
lived in the same townhome for approximately nine months before trial. Mother
admitted, however, that she and Father would have to find a larger place to live if
the children were returned to them, and Mother had found one for the same rent.
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There is a strong bond between the children and their parents, and the
children would like to return to their parents. See Holley, 544 S.W.2d at 372
(listing desires of child as relevant to best interest analysis). The children had
been in foster care for almost one year at the time of trial, and although they had
been in multiple foster homes, three of the changes were a result of the
children’s behavioral problems.
Wells-Lewis testified that the Department would like to have the children
adopted. See id. (listing proposed placement plan as relevant to child’s best
interest). Wells-Lewis testified that she had looked into almost twenty family
members and friends as possible placements for the children but that none were
appropriate. The children’s current foster parents do not want to adopt, but
Wells-Lewis testified that the Department has services available to work with the
children and any prospective adoptive parents to facilitate adoption.
Considering the factors listed in family code section 263.307(b) and
discussed in Holley, and viewing all the evidence in a neutral light, we conclude
that the trial court could reasonably form a firm conviction or belief that
termination of Father’s parental rights is in the children’s best interests. See
H.R.M., 209 S.W.3d at 108; see also Shaw v. Tex. Dep’t of Family & Protective
Servs., No. 03-05-00682-CV, 2006 WL 2504460, at *7 (Tex. App.—Austin Aug.
31, 2006, pet. denied) (mem. op.) (holding despite improvement before trial,
termination was in child’s best interest considering mother’s borderline
intellectual functioning, psychological disorder, drug dependence, lack of
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improvement in parenting skills, and lack of accountability). We therefore hold
that the evidence is factually sufficient to support the trial court’s best interest
finding, and we overrule Father’s fourth issue.
V. Mother’s Appeal
Mother’s court-appointed appellate counsel has filed a motion to withdraw
as counsel and a brief in support of that motion. In the motion, counsel avers
that he has conducted a professional evaluation of the record and, after a
thorough review of the applicable law, has reached the conclusion that there are
no arguable grounds to be advanced to support an appeal of this cause and that
the appeal is frivolous.
Counsel’s brief and motion meet the requirements of Anders by presenting
a professional evaluation of the record demonstrating why there are no reversible
grounds on appeal and referencing any grounds that might arguably support the
appeal. See Anders, 386 U.S. at 741, 87 S. Ct. at 1398; Mays v. State, 904
S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). This court has
previously held that Anders procedures apply in parental rights termination cases
when the Department has moved for termination. In re K.M., 98 S.W.3d 774,
776–77 (Tex. App.—Fort Worth 2003, no pet.). Mother was given the opportunity
to file a pro se brief on her own behalf, but she did not do so.
In our duties as a reviewing court, we must conduct an independent
evaluation of the record to determine whether counsel is correct in determining
that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.
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Crim. App. 1991); Mays, 904 S.W.2d at 923. Only then may we grant counsel’s
motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346,
351 (1988).
We have carefully reviewed the appellate record and Mother’s appellate
counsel’s brief. We agree with her appellate counsel that the appeal is wholly
frivolous and without merit. We find nothing in the record that might arguably
support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005); Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641,
646–47 (Tex. App.—Austin 2005, pet. denied). Therefore, we grant Mother’s
appellate counsel’s motion to withdraw and affirm the trial court’s judgment
terminating Mother’s parental rights to her children.
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VI. Conclusion
Having granted the motion to withdraw filed by Mother’s counsel, and
having overruled Father’s dispositive issues, we affirm the trial court’s judgment
terminating Father’s and Mother’s parental rights to D.A.T., K.J.T., T.D.T., and
S.S.T.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: May 31, 2012
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