COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00141-CV
IN THE INTEREST OF H.N.H.;
J.L.H., JR.; AND J.N.H., THE
CHILDREN
----------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellant Mother appeals the trial court’s judgment terminating her
parental rights to H.N.H.; J.L.H., Jr.; and J.N.H. In nine points, Mother
challenges the legal sufficiency of the findings under Texas Family Code section
161.001(1)(D), (E), and (O) to support the termination of her parental rights to
each of her three children. We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are the parents of H.N.H.; J.L.H., Jr.; and J.N.H. The
children’s home life was somewhat convoluted: Mother and the children lived
with Father and his significant other Kimberly, along with the children that Father
fathered with Kimberly. The three adults exposed the children to homes that
were dirty and had unsafe living conditions, including domestic violence, which
led to the removal of the children. The following factual background documents
what the children endured before their removal, how Mother fared on her service
plan after her children were removed, and the reasons why recommendations
were made to terminate Mother’s parental rights to her children.
A. H.N.H.’s Health Issues
1. Lice
Claire Nieswiadomy testified that while she was the school nurse at Evers
Park Elementary, she saw H.N.H. in her office frequently over a two-year period
beginning in September 2008. Nieswiadomy agreed that H.N.H. had missed
approximately twenty-four days of school one year and twenty-one days of
school the following year and that most of those absences were due to her
chronic infestations of head lice. Nieswiadomy testified that H.N.H. came to
school with head lice almost daily for two years and that this was the first time in
her career that she had seen a child keep a head lice infestation for two years.
Nieswiadomy went over with Mother ―many, many times‖ why lice was a
problem and how to correct the problem. Nieswiadomy estimated that she went
over the instructions with Mother sometimes weekly and sometimes every day
and that she had talked to Mother about removing lice thirty or forty times.
Because Nieswiadomy was aware from her conversations with Mother that
2
Mother had an impediment to learning, Nieswiadomy told Mother how to treat the
lice ―very, very simply and very, very clearly and repeatedly and gave the
directions to her verbally.‖ Nieswiadomy gave Mother combs and demonstrated
how to use them, supplying her with oral and written instructions. Nieswiadomy
always rechecked H.N.H. when she came back to school after Mother had
treated her head; sometimes H.N.H. came with the active medication still in her
hair, and other times she came with solutions on her hair that Nieswiadomy could
not identify. Nieswiadomy treated H.N.H. in the nurse’s office ―a lot of times‖ in
an effort to keep her in the classroom; Nieswiadomy testified that H.N.H. would
have missed more school if not for Nieswiadomy’s efforts.
Nieswiadomy said that most parents solved a lice problem in a couple of
days, but Mother did not. Nieswiadomy testified that Mother had put into practice
her advice only ―[v]ery minimally.‖2 Nieswiadomy said that Mother’s burden to
care for her children was not alleviated because of her possible learning
disability.
Nieswiadomy opined that it was not a good parenting practice to allow a
child to stay infested with head lice and that it could be emotionally or physically
damaging for a child to have chronic infestations of head lice. Nieswiadomy
thought H.N.H. would not have a normal childhood because her peers and
teachers did not look at her the same way as other children. Nieswiadomy said
that the lice infestation would subject H.N.H. to ridicule, which Nieswiadomy
opined would have a lifelong impact.
2
The record includes petitioner’s exhibits 3, 4, and 5 showing that Mother
took the children to Dr. Nuby to obtain lice treatment and that he was unable to
eradicate the problem.
3
2. Stomach Issues and Asthma
Nieswiadomy testified that H.N.H. had chronic stomachaches and that she
had battled problems with hunger and constipation, which probably contributed to
her stomachaches. H.N.H. would ―very frequently‖ tell Nieswiadomy that she
was hungry but would eat only a cracker. Nieswiadomy said that H.N.H. ―did not
really like normal food very much.‖
Nieswiadomy recalled that Mother said that she did not get up in time to
feed H.N.H. and that she frequently brought H.N.H. to school late. On one
occasion, Mother brought H.N.H. to school and said that she needed to eat, but
the school cafeteria was already closed. Nieswiadomy testified that it was
harmful for a child’s emotional and physical development to not feed her
breakfast and that a kindergartner needed to eat breakfast because she was
growing and needed nutrition on a regular basis. Nieswiadomy agreed that this
had occurred for two years.
Nieswiadomy testified that H.N.H. had chronic respiratory problems and
that her asthma was not being properly treated. Nieswiadomy talked to Mother
about how to treat H.N.H.’s asthma, and Mother responded that she was taking
care of it. Nieswiadomy recalled that it took her quite a while to get asthma
medication at school and that she had to call H.N.H.’s doctor to get the
medication.
3. Hygiene Issues
Nieswiadomy said that H.N.H. ―very frequently‖ came to school dirty: she
had a dirty face (covered with mud and dried mucous), dirty hands, dirty arms,
dirty legs, and filth and grime under her fingernails and toenails; her clothes were
typically dirty; and her hair was dirty. Nieswiadomy said that H.N.H.’s hygiene
4
was ―very poor.‖ Nieswiadomy discussed H.N.H.’s hygiene with Mother, and
sometimes H.N.H. came to school ―a little bit cleaner‖ afterwards, but ―it was
never a regular thing that she was clean.‖
B. H.N.H. Receives Burns
Stephanie Kolb, an investigator for CPS, received a referral in December
2008 because H.N.H. had received burns to her legs and her hand from a space
heater. After Kolb investigated, she ruled the case ―reason to believe‖ for
medical neglect due to the delay before Mother sought medical care for H.N.H.,
―reason to believe‖ for physical neglect due to the conditions of the home, and
―reason to believe‖ for neglectful supervision because Mother knew that the
heaters in her home were hot to the touch and still allowed the children to be
around them.
With regard to the medical neglect, H.N.H. received the burns around
10:30 a.m. when one of the children pushed H.N.H. into the heater while Mother
was present. A family member called for a welfare check on the home around
2:00 p.m. after hearing about the burns. When police responded to the home,
they immediately called EMS. H.N.H. would not provide detailed information, so
the Department of Family and Protective Services3 had to rely on Mother’s
explanation of the burns. The Department questioned the validity of Mother’s
explanation—that one of the younger children in the home (age two or three) had
pushed H.N.H. (age six) into the heater. To the Department, the injuries did not
equate to H.N.H.’s having been pushed into the heater because she had injuries
3
We refer to the Texas Department of Family and Protective Services
interchangeably as ―the Department‖ and ―CPS.‖
5
to her inner leg, outer leg, and palm. One CPS worker said that ―even to this
day, I still wonder how that happened because it’s almost like she had to straddle
it when she fell and then it hit her on the other side.‖ H.N.H.’s burns were
second-degree burns, requiring an overnight hospital stay. Kolb agreed that the
four-hour delay in receiving treatment for second-degree burns to a small child
was ―pretty significant.‖4
With regard to the ―reason to believe‖ for physical neglect, Kolb testified
that a water heater had broken two or three days prior to her visit and that the
floors were still wet and ―completely black from mud.‖ Kolb said that roaches
were crawling on every wall, that there was rotten food in the kitchen, and that
the environment was not safe for small children.
Kolb sent the family, including Father and Kimberly who were living in the
home, to Family-Based Safety Services (FBSS) at the conclusion of the
investigation.
Julissa Rodriguez, the FBSS caseworker assigned to Mother’s case,
testified that both families participated in services and that Mother was asked to
participate in homemaker services and was given a referral to MHMR.
Rodriguez went to Mother’s home and talked to her about the concerns that led
to the case being opened on her. Rodriguez talked to Mother about parenting
tips, health and safety hazards inside the home, cleaning the home, and dealing
with lice. Rodriguez provided Mother with a lice removal kit and talked to her
about putting sheets in the dryer to kill the lice and about cleaning the children
4
Kolb was aware that Mother had called some relatives and had attempted
to treat H.N.H.’s burns with mayonnaise and possibly margarine and Neosporin,
but Kolb testified that the burns were ―very severe.‖
6
and making sure that their scalps did not have eggs or nits. Rodriguez observed
that whenever she went to the home, the children had ―things‖ on their faces, and
Rodriguez talked to Mother about washing and hygiene issues. Rodriguez could
not recall whether she ever saw the children when they were not dirty. Every
time that Rodriguez pointed out to Mother that the children were not clean,
Mother had an excuse—i.e., that they were eating, that she was ―fixing to‖ clean
them, or that they had just finished eating.
Mother completed the services and was discharged from FBSS in May
2009.
C. Injury to Another Child in Household
1. Supervisor’s Testimony
Stephanie Lopez, a supervisor in the investigative section of CPS, testified
that CPS received a referral that the children had lice and that one of Kimberly’s
children had sustained ―some pretty significant injuries.‖ It was unknown who
had inflicted the injuries on Kimberly’s child, so there was a subsequent referral
on Mother and her children. Lopez and Ashley Hambrick investigated the referral
on April 12, 2010.
Lopez interviewed one of Mother’s children who had lice and found that
―the lice was extremely active. You didn’t have to be close up. You could see it
crawling in his hair.‖ Lopez discussed the lice problem with Mother, and Mother
said that she had been treating the lice. Lopez asked Mother to show her the lice
medication, but Mother could not locate it.
With regard to the injuries on Kimberly’s child’s face, Mother said that she
had no idea how the injuries had occurred. Mother later said that Kimberly’s
child had received the scratch on her face when she ran into the corner of the
7
television. However, Mother’s son J.L.H., Jr. said that Kimberly’s child had
misbehaved and had received the injury when Mother took a toy truck that had a
broken light on it and hit her with it. With regard to a bite mark and bruise on
Kimberly’s child’s shoulder, Mother admitted that one of her children had caused
it. Lopez explained to Mother why a two- to three-week-old injury that still had
bruising concerned the Department, and Mother had no response.
Lopez talked to Mother about disciplining the children, and Mother said
that she had watched Kimberly’s children and that she had disciplined them as
well as her own children with a belt. Mother did not mention when, where, or
how often she used a belt to spank the children.5
J.L.H., Jr. also mentioned to Lopez that Father and Mother fought by
throwing things at each other and by hitting. J.L.H., Jr. said that Father had tried
to hit Mother, but she had moved out of the way and had ended up with only a
scratch. J.L.H., Jr. also told Lopez that Father and Kimberly had fought. Lopez
testified that the domestic violence in the home concerned the Department
because it creates the risk of emotional or physical abuse of the children and
because the children could be injured when the adults throw objects.
Lopez told Mother that Kimberly could not live with Mother and her family.
Lopez testified that if Father, Kimberly, and Mother were still living together in
late November or early December 2010, that would be inconsistent with good
emotional and physical health of the children.
5
Lopez made clear that she was not saying that Mother’s spankings of the
children caused the injuries.
8
Lopez summarized the Department’s concerns as follows: Mother had a
previous case—the referral for H.N.H.’s burns—in which she had worked in-
home services; Mother was now involved in a new case with concerns of
domestic violence; and a small child had received injuries, with no explanation,
on a vital part of her body. CPS was concerned about whether the injuries were
received during a fight between the adults or whether one of the adults had
inflicted the injuries on the child. Based on the fact that Kimberly’s child exhibited
injuries and that the cause of those injuries could not be determined, the
Department felt that there was a sufficient risk to the children’s safety and well-
being and that they needed to seek the trial court’s permission to remove the
children. Lopez thus submitted an affidavit to the trial court for removal of the
children.
2. Investigator’s Testimony
Ashley Hambrick, an investigator for CPS, testified that she was also
involved in the investigation on April 12, 2010. Hambrick went to the school to
talk to H.N.H., who was seven at the time. H.N.H. said that sometimes Father
slept in the room with Mother and that sometimes he slept in the room with
Kimberly. H.N.H. told Hambrick that nothing happened when she got in trouble
at home but that Kimberly was mean to her children. H.N.H. also told Hambrick
that one of Kimberly’s children had a bite mark on her but did not know how she
had received the bite. H.N.H. said that Mother sometimes spanked Kimberly’s
children with a belt.
Hambrick learned that Kimberly and Mother took turns watching each
other’s children, so there was no way to determine who caused the injuries to the
9
child. One child of Kimberly’s had a cut on her face and some bruises on her
back, and neither Mother nor Kimberly provided an explanation for the injuries.
Hambrick made a referral to the District Attorney’s Office because there
was a risk of physical abuse to the children and because there were unexplained
injuries on Kimberly’s children. Additionally, Mother had worked FBSS
previously, and there was a concern regarding Mother’s lack of protectiveness of
her children. Hambrick testified that she did not remove the children at that time,
but she submitted affidavits to the trial court.
D. CPS Removes Children
Mother’s children were ultimately removed on April 14, 2010, due to
concerns of physical neglect and medical neglect. The physical neglect was
related to the concern that Kimberly’s injured child, who lived in the same home
as Mother’s children, was injured by someone in the home. There was a
moderate level of concern, not the most severe, based on the fact that no one
could explain how the child had received her injuries.6
E. Perspectives Given at Trial
1. CPS Caseworker’s Perspective
a. Services
Dea Davis, Mother’s CPS caseworker, testified that when the new case
was opened in April 2010, the services that were offered to Mother included a
psychological evaluation, in-home homemaker trainer services, healthy
relationships classes, and anger management classes. Davis later extended
Mother’s services beyond those originally set up because CPS ―wanted to make
6
Kimberly later admitted that she had injured her child.
10
sure that [they] offered her all the services possible to help reassure the safety of
her children if they were returned home to her. And it had been requested by the
parent trainer, but also with some reservations of she wasn’t sure whether
[Mother] would actually benefit from the additional time.‖
Mother completed the homemaker training class, but the trainer was
concerned that there were times during the course when Mother stopped making
progress in that the house was not as clean or as well-kept as it had been
previously. Mother successfully completed the anger management classes.
Mother did not complete counseling with Dr. Greer because Dr. Greer terminated
the counseling sessions. Other individual counseling sessions were offered with
Mark Dittloff to help Mother deal with the stress of having a CPS case and with
her children, and Mother attended most of those sessions.
b. GED Program and Literary Class
The services CPS offered to Mother during the course of the case,
including a GED program, were intended to help Mother establish her
independence. They were encouraged so that Mother could develop a ―job skill‖
and move forward with DARS, which helped people locate employment. DARS
referred Mother to Denton ISD, but Mother did not follow through at that time. In
January, Davis reinitiated the idea of Mother’s obtaining her GED and had found
a literacy program that Davis thought would benefit Mother.7 Mother was eager
to participate in the GED program but was hesitant about the literacy program,
stating that she knew how to read and therefore did not need to take the literacy
program.
7
The GED course and a literacy class were not ordered by the court.
11
c. Employment and Income
Davis had no knowledge of Mother ever holding a job. With no
employment history, the Department was not very confident that Mother could
support her children, even though Mother was part of the Home and Community-
Based Services, which Davis testified could help Mother find other resources in
terms of job skills like cleaning homes. The Department was thus concerned that
if the children were returned to Mother, she would not have the income to provide
her children with all the necessities and to continue to pay for her home. But
Davis testified that Mother received SSI and that her children might possibly be
eligible for SSI, which could provide additional income for the family.
d. Visits
Mother was timely to her visits, but she missed several because Father
had encountered car problems. He was the sole provider of her transportation to
the visits. Mother was appropriate during the visits, and the children were
affectionate toward Mother. At the last visit prior to the termination trial, Davis
noticed that H.N.H. gravitated more toward the foster father than Mother, but that
was Davis’s only concern during all of the visits.8
e. Stability of Housing
Throughout the case, CPS was concerned about the stability of Mother’s
housing—because she had lived at four residences while the case was open—
and her relationships—because of the unstable relationship between Mother,
Kimberly, and Father. Davis testified that CPS had set as one of its goals for
8
Davis had visited the children in their current placement, and they were
doing well. All three children received play therapy, and H.N.H. and J.L.H., Jr.
received speech therapy.
12
Mother to establish a consistent residence for at least six months, but Mother
never accomplished that. Mother had resided on South Wood Street for
approximately two months9 at the time of the trial, which did not allow for
adequate time to review whether Mother could maintain a safe home for the
children. It was the first time that Mother had lived in a home without Father and
Kimberly. Davis had visited Mother’s home on Wood Street and had found it to
be suitable and appropriate; Mother had acquired the furniture and necessities
for the children.
f. Domestic Violence
Davis was not personally aware of domestic violence in the home, other
than the statements in the affidavit regarding what J.L.H., Jr. told a caseworker.
J.L.H., Jr. reported witnessing violence in the home between the adults. 10 An
incident in the home on August 12, 2010, resulted in broken windows. The
domestic violence caused concern for the best interest of the children.
Davis had no concerns about whether Mother loved her children. Davis
was concerned, instead, about the stability in Mother’s housing and her
continued relationship with Father and Kimberly. When asked about the specific
concerns that she had about that relationship between the three adults, Davis
said,
9
In various places, the record states that Mother was in her home either
three weeks or three months at the time of the trial. However, the testimony
reveals that Mother’s lease started on February 8 and that she moved in on
February 15, 2011. The termination trial was on April 11, 2011. So Mother had
been in her home for two months at the time of the termination trial.
10
CPS was also concerned that Mother’s young children had knowledge
that Father rotated between Mother and Kimberly; thus, CPS did not approve of
the sexual relationships that had been taking place.
13
It goes back to the beginning, when the initial referral came in and
the decision to remove, that there was physical abuse in the home,
and that either [Mother] or [Kimberly] would be possibly the
perpetrator. So they were asked to split up at that point. And the
concerns would be that her children would be in the home with
someone that was physically abusive, as well.
Davis did not think that Mother had the protective nature required to protect her
children from further abuse; Davis thought that Mother would continue to choose
her friendship and relationship over the safety of her children.11 Moreover, Davis
did not believe that Mother was an independent thinker because she had looked
to her attorney for answers during the permanency conference and because the
parenting homemaker had expressed concerns over Mother’s ability to think for
herself.
g. CPS’s Goals
At the outset of the case, CPS’s goal was family reunification. The goal
changed to termination at the permanency hearing in September 2010 because
the Department determined that Father and Kimberly were not making the
progress that the Department wanted to see and that Mother would continue the
relationship with them even if their parental rights were terminated. 12 CPS was
not willing to return the children if Mother was living with Father and Kimberly.
11
Davis, however, agreed that it was possible that Mother might stay away
from Father and Kimberly if the children were returned to Mother.
12
In September 2010, Davis had evidence of a continued relationship
between Mother and Father. Despite Mother’s knowledge that removal was the
goal of CPS, she continued to make contact on many occasions with Father and
Kimberly. Davis testified that one of her coworkers, Veronica Tackett, saw
Mother, Father, and Kimberly together at an AT&T store on February 8, 2011,
despite Mother’s having been encouraged to stay away from Father and
Kimberly.
14
h. Department’s Recommendation
The Department was of the opinion that it was in the children’s best
interest to terminate Mother’s parental rights because of Mother’s actions and
inactions, specifically her past history with CPS, her continued relationship with
Father and Kimberly, her continued attraction to Father, her inability to act
independently of Father’s approval, her failure to protect her children, her failure
to maintain stable housing for six months, and her failure to gain independence
so that she could support her children if they were returned to her.
2. Psychologist’s Perspective13
Mark Foster, a psychologist, testified that he met with Mother in May 2010
and conducted a psychological evaluation on her. Mother’s intellectual abilities
fell in the mild mental retardation range with an IQ of sixty-five.14 Mother’s
performance IQ was seventy-five. Foster had mild concerns that Mother had
tested lower than her actual IQ due to her emotional functioning and personality
factors, and he believed that Mother’s actual IQ might be ―a little bit higher, but
it’s not going to be significantly higher.‖
Foster testified that a person with an IQ similar to Mother’s might be able
to benefit from services but probably would not benefit significantly; it depended
13
Although the Department did not move to terminate Mother’s parental
rights based on mental illness, see Tex. Family Code Ann. § 161.003(a) (West
2010), we include the psychologist’s testimony because it is relevant to the
endangering conduct finding.
14
Foster explained that ―IQ‖ refers to how fast a person learns and said that
some people never get to more advanced, abstract thought processes. Foster
did not make a diagnosis of mild mental retardation because that diagnosis
cannot be made solely by an IQ score; he said only that Mother’s IQ score fell in
that range.
15
on the individual. When asked whether a person with an IQ of sixty-five and a
performance IQ of seventy-five could complete services, Foster said that it would
depend on whether the services were presented at her level and the level of her
motivation. Foster opined that it would be very difficult for Mother to successfully
complete the services offered to her due to her mental abilities. Foster, however,
testified that Mother’s IQ seemed to indicate that there may be meaningful
changes in her behavior but that it would be considerably slower than most
people, but Foster agreed that indicated that Mother could change.
Foster testified that
[a]n IQ of 65 has very significant consequences in terms of parenting
ability. What we know from research on IQ and parenting is [ ] that
once an individual’s IQ reaches 60, regardless of how much you
provide services to an individual, regardless of how much parenting
classes and counseling and supportive services you provide, the
individual is not able to. And of course, her IQ of 65 is above that,
but it’s -- it’s certainly in that range.
What is more significant, perhaps, for day-to-day living is her
verbal IQ of 59. Individuals with an IQ of 59 -- and this is also
mirrored if you look under academic achievement with her reading
and math skills, which fall generally between a second- and third-
grade level.
Individuals with intellectual abilities and reading skills, so forth,
at this level very often have difficulty following directions. They often
have difficulty administering medications. They often have difficulty
following anything but the simplest instructions.
They are at risk of being manipulated by others because they
misunderstand what people are saying to them or that they’re not
able to realize when someone is taking advantage of them.
With IQs that are in the range of Mother’s, studies suggest that emotional
maturity is also delayed. For instance, individuals with Mother’s combination of
personality characteristics very often seek out a relationship with a person who
16
will take care of them and will surrender their personal boundaries in return for
being taken care of. Such individuals are often prey for individuals who are
looking for someone to take advantage of. Foster said that he often saw
increased levels of domestic violence with people who tested like Mother.
Based on the testing, Foster concluded that Mother was an individual who
was very likely to present as immature, was likely to be emotionally very
dependent, was likely to seek out relationships where others would take care of
her, was at risk of being manipulated by others, and was likely to have difficulty
resolving conflict in a mature manner.
Foster said that Mother’s emotions are very likely to influence her decision-
making and that her thought processes would be very compromised when she is
upset. Foster expected Mother to have ―very poor frustration tolerance‖; the
things most people take in stride, like the challenges of being a parent, would
pose more difficulty for Mother. Foster testified that one of the risks to the
children as a result of Mother’s poor frustration tolerance is inappropriate
discipline practices. Foster said that children learn frustration tolerance primarily
from their parents and that when such skills are not modeled effectively by
parents, the children spend the rest of their lives trying to learn such skills and
―very often suffer deficits throughout their lifespan.‖
Foster testified that it would be detrimental for a child to observe an
unhealthy man-and-woman relationship in a household and that a polygamist-
type relationship would affect a child’s moral development. Foster testified that it
is unlikely that Mother would be willing or able to change her relationship status
for the benefit of her children.
17
Foster also testified that it would be detrimental to a child to observe
domestic abuse and that the way Mother treated Father or Father treated Mother
was something that the children would model in their potential future
relationships. Children who are raised in homes with domestic violence go
between two extremes: (1) there are those who are very angry—acting out and
having trouble managing their emotions and dealing with authority figures, as
well as their peers and (2) those who become hyper-responsible—walking
around on eggshells because they are afraid of setting off a conflict between the
parents. Foster testified that children are likely to act out with their siblings
physically if there is physical abuse in the household.
Foster said that parents with Mother’s characteristics often have a hard
time separating themselves from their child’s age-appropriate behavior and view
a child’s spilling his milk as the child trying to punish the parent. Because such
parents are unable to separate their emotions from their decision-making, they
often make very poor parenting decisions. Foster said that Mother can make
parenting choices, but those choices are very often going to be made based on
how she feels about the situation instead of the facts or demands of the situation;
typically, the child’s needs are secondary, which creates a risk for the child.
Foster testified that the following were not examples of a parent putting her
children’s needs first: allowing a child to go to school hungry; repeatedly
exposing children to CPS; allowing a child to receive second-degree burns and
not seeking medical attention for at least four hours; and failing to eradicate
children’s head lice for almost two years. Foster agreed that if a child received
second-degree burns and if the parent had contacted family members for
medical assistance, such act would constitute putting the child first. Foster
18
similarly agreed that if a child is a picky eater and would not eat but the parent
had packed a lunch for the child, such act would constitute putting the child first.
It did not surprise Foster that Mother was unable to keep her children free
from head lice for over a year because not being able to follow through is typical
for someone with an IQ similar to Mother’s. It did surprise Foster that Mother had
not rid her children of head lice after instructions were provided thirty or forty
times; Foster opined that another dynamic besides intelligence, like Mother’s
choice to not take care of the problem, had come into play.
Foster testified that people with IQs similar to Mother’s typically look on the
bright side of things and often fail to learn from experience. When people are
overly focused on the positive in their lives, they often do not make needed
changes. The fact that Mother had a previous CPS case suggested that she had
failed to learn from that experience.
In light of the results from Mother’s psychological evaluation, Foster opined
that it would create significant risks to return the children to Mother.
3. In-Home Parenting Provider’s Perspective
a. Mop & Glo Incident
Lititia Hickey testified that she had provided in-home parenting services to
Mother from July 2010 until January 2011. When Hickey met with Mother, she
revealed that H.N.H. had spilled Mop & Glo on herself when she was one. The
fact that a child was able to pour a poisonous substance all over her body
indicated to Hickey that H.N.H. was not being properly supervised. Hickey
testified that an average parent would have attempted to call poison control or
19
another emergency contact when H.N.H. doused herself with Mop & Glo; in
Hickey’s opinion, it was not reasonable that Mother did nothing.15
b. H.N.H.’s Asthma
Additionally, while H.N.H. was in foster care, CPS asked Mother for
H.N.H.’s nebulizer because she had asthma, but Mother refused to provide it.
Mother wanted to keep it at her house until the children were returned to her.
Hickey did not believe that was appropriate parental behavior.
c. Relationship with Father and Kimberly and
Domestic Violence
Hickey testified that part of the reason that Mother’s children were in CPS
custody was because of Mother’s relationship with Father and Kimberly. Mother
said that they were all friends who lived together. Mother thought that her
relationship with Father was acceptable, and she had a difficult time trying to
separate herself from him because she had been in a relationship with Father
since she was very young and because he was the father of her three children.
Mother relied heavily on Father, including for rides to her MHMR appointments,
and appeared to believe whatever he told her, which Hickey saw as a problem.
Mother told Hickey that her children came first, but Hickey did not see evidence
of that; Mother continued to have a relationship with Father and Kimberly despite
acts of domestic violence. Mother told Hickey that Kimberly had pulled her hair
and that Mother had pushed Father when he had tried to break up the fight.
Mother also admitted that during one family violence incident, she left a handprint
15
Hickey assumed that Mother did not call poison control after H.N.H.
doused herself with Mop & Glo because Mother did not tell her that she had
called poison control.
20
on Father’s chest. Police were called to the house, and Mother was given an
opportunity to leave the home in lieu of being arrested. Hickey testified that such
behavior is not appropriate around children.
d. Mother’s Cognitive Functioning
Mother’s cognitive functioning was less than average, which raised
concerns regarding her ability to understand what Hickey was trying to teach
her.16 It seemed that most of the time it was hard for Mother to understand what
Hickey was trying to do for her. Hickey noted that Mother did not appear to
understand that her current housing issue did not help her show stability. Mother
told Hickey in January 2011 that she was not sure why CPS had asked her to do
―all this stuff.‖ Mother made that statement, showing that she did not understand
what CPS was doing, nine months after her children were removed in April 2010.
Hickey testified that small children cannot afford a parent who ―just can’t get it.‖
e. Conditions of Homes
When Hickey met with Mother in July 2010, Mother admitted that it was her
fault that her children were in CPS custody because she should have kept her
home cleaner. Mother’s house was dilapidated, had a foul odor, and had a roach
infestation. Hickey thought that the foul odor in Mother’s house was attributable
to the old carpeting. Hickey said that when the old carpeting was removed, the
odor was a little better, but there was always an odor in the home. There were
three pets living in the house, and there were roaches in the animals’ food and
water. The pets inhibited Mother’s ability to keep the roaches and flies out of the
16
Hickey had observed that Mother could read on a low level but had to
ask questions about the words.
21
house. In August 2010, there were ―lots of flies‖ in the home; Mother explained
that was due to leaving the door open while she was giving the dog a bath.
Hickey said that it was not an appropriate set of conditions for small children to
be living in.
In November 2010, Hickey observed Mother using a gas heater, an electric
heater, and the oven to heat the home because there were broken windows that
were not allowing the heat to stay in. On several occasions, Hickey noticed that
additional windows had been broken out. Mother explained to Hickey that a
couple of the windows had been broken during her fight with Father and that a
neighbor’s motorcycle had ―kick[ed] up rocks from the gravel driveway‖ and
broken other windows.
Hickey summarized that Mother had lived in the dilapidated home from
July to December 2010. To Hickey’s knowledge, no one forced Mother to live in
those circumstances. Mother told Hickey that she was going to fix the home and
that the rent would be reduced. Hickey saw Mother’s father working on the
home. Hickey encountered Mother’s landlord in November, and the landlord said
that Mother owed $40 on her November rent and a full month’s rent for
December. The landlord then said that she was evicting Mother, Father, and
Kimberly because they had not paid their rent and because they had stolen some
tools and a lawn mower. Hickey urged Mother to find a better place to live, and
Mother moved in with her mother17 because she did not want to get evicted.
Mother called Hickey a month before the termination trial and told her that she
had rented a house.
17
Hickey last visited Mother in January when Mother was living with her
mother. The home was clean but had roaches.
22
f. Services
As part of the homemaker services program, Hickey concentrated on
housekeeping due to all the concerns with the home, but she also went over
nutrition and cooking, personal hygiene, budgeting, stress management, home
safety, and time management. Mother worked hard on the initial home and
made it a lot cleaner, but the home itself was worn down. Although Mother
initially ―was very adamant about getting her house cleaned up. Toward the end,
it appeared that she wasn’t doing as much in light of cleaning.‖ On November
30, Hickey sent caseworker Davis an email that said that Mother loved her kids
but that Hickey did not see that Mother had the ability to follow through with her
services and gave the impression that she did not really care.
Hickey noted that Mother’s behavior initially showed that she was
benefitting from the services that Hickey was providing, but at the end of the
services, she had not demonstrated that she had ―sufficiently benefitted‖ from the
services that Hickey had provided to her. Hickey said that Mother was still in
contact with Father and Kimberly, that Mother was still relying on Father, that she
was not implementing the things that Hickey had taught her through in-home
parenting and homemaker services, and that the house was still a mess. So
although Mother successfully completed the homemaker services because she
had made some improvements, Hickey did not believe that Mother had
sufficiently alleviated the risk of abuse or neglect for her children based on what
she had learned from Hickey. Hickey noted that Mother would require a good
support system and guidance to assist her with parenting and maintaining her
23
home. Hickey, however, was unaware of anyone in Mother’s family who was
willing and capable of supporting her and guiding her.18
4. Mother’s Perspective
a. Parenting
Mother testified that her children are ages four, six, and seven. Mother
testified that age appropriate behaviors for a seven-year-old child included
watching television, hanging out with friends, playing outside, and going to the
park; that age appropriate behaviors for a six-year-old child included playing
outside, going to the park, and going to a birthday party; and that age appropriate
behaviors for a four-year-old child included playing with toys, playing outside,
going to the park, watching television, coloring in a coloring book, and having
free time.
Mother did not understand the word ―vocabulary‖; when the question was
rephrased, she said that her four-year-old child could say anything, but she did
not know whether he could make complete sentences. Mother said that she
helped her seven-year-old child with her homework when she was six and that
her homework included words like ―I,‖ ―am,‖ ―do,‖ ―did,‖ ―be,‖ and ―may.‖
With regard to the lice infestation, Mother testified that she had used the
lice medicine on H.N.H.’s head and had combed it through her hair but that the
medicine did not help. Mother testified that she knew she needed to wash the
bed linens and that she had done that. Mother had also been told that she
needed to treat the cloth furniture and the carpets for lice.
18
Lopez testified that Mother’s parents and sister had a history of
involvement with CPS; they had referrals for drug use, the condition of their
homes, and sexual abuse. The cases were ruled ―reason to believe.‖
24
With regard to her children’s hygiene issues, Mother disagreed that her
children were dirty when they were removed.
b. Relationship with Father and Kimberly
Mother had been in a relationship with Father since she was sixteen years
old, and she was twenty-five years old at the time of the trial. Mother testified
that Father was a good father because he ―did anything for his children,‖
including giving up the last of his money to buy them food. Mother testified that
Father had never made her do anything that she did not want to do.
Mother, Father, and Kimberly lived together for three years while Father
and Mother were a couple. During that time, Kimberly had two children with
Father, but Mother was not aware that Father and Kimberly were having sexual
relations and was told after Kimberly’s children were born that they were
Father’s. Mother testified that she had heard that her children knew that Father
slept with Mother one night and with Kimberly one night; Mother said that
surprised her because she was not with Father at that time. Mother said that all
she knew was that Father slept in the front room. Mother initially believed that
her relationship with Father and Kimberly was appropriate for her children, but
Mother later agreed that it was not appropriate for her children to see their father
living with another woman with whom he was having children. Mother allowed
her children to live in that house and continue to see that for two years.
Mother agreed that she never had any CPS issues until Kimberly moved
in. Mother said that Kimberly never disciplined or laid a hand on Mother’s
children when Mother was present, but Mother did not know whether Kimberly
whipped Mother’s children when Mother was not there. Mother believed that her
children were removed because of Kimberly.
25
From the time the CPS investigation started, Mother knew that the living
arrangements that she had for her children were not appropriate. Mother did not
recall the first time that the Department told her that she needed to separate
herself from Father and Kimberly;19 she agreed that it could have been in April or
May 2010. Mother said that she understood that she needed to stay away from
Father and Kimberly in order to continue fighting to get her children back, and
Mother testified that she would not go around Father or Kimberly. However,
Mother agreed that as of February 2011, she was still riding in the car with Father
and Kimberly, which was not complying with what the Department had asked her
to do.
Mother was in the car with Father and Kimberly in February 2011 when a
car accident occurred. Mother admitted that CPS had told her several times that
the three of them could not be together. Mother said that was the only time that
she had ridden with them and that her mother usually drove her wherever she
needed to go.
Mother agreed that she was with Father and Kimberly in March when she
saw Davis’s supervisor at the grocery store and that she knew that she was not
supposed to be with Father and Kimberly. Mother said that she had not spoken
to Father and Kimberly ―this month,‖ which was April 2011.
Mother was aware that Father had relinquished his parental rights to her
three children on the Friday before the termination trial started and that he could
no longer have contact with them. Mother testified that she was no longer with
19
Mother testified at one point that no one told her that she could not be
around Father, only that she was not supposed to be around Kimberly.
26
Father; she had broken up with him ―a long time ago.‖ However, Mother
admitted that the Friday before the trial, she stood in the courtroom next to
Father and Kimberly. Mother, however, had not ridden with them; she had
walked to the courthouse.
Mother had a cell phone, and Father and Kimberly were on the contract
with Mother. At the time of the termination trial, Mother had not gotten around to
having Father and Kimberly removed from the cell phone plan. Mother agreed
that if she had taken Father and Kimberly off her cell phone plan, it would have
shown the judge that she was serious about not having any more contact with
them.
c. Domestic Violence
Mother testified that the police came out to her home twice because of
domestic disturbances. Mother said that one incident was between her and
Kimberly and that the other incident did not involve Mother.
Mother said that Kimberly started the fight that occurred in November
before Father and Kimberly moved out. Mother could not remember what she
said to Kimberly that caused her to become aggressive, but Kimberly responded
by calling Mother ―a dumb broad.‖ Mother then called Kimberly ―a dumb broad‖
and went to her room. Mother initially told Kimberly ―not to lay a hand‖ on her, or
Mother would call the police. Kimberly told Mother that she did not care, and
then Kimberly chased Mother into her room, pushed Mother, and pulled her hair.
Mother then tried to defend herself. Mother called the police but then tried to
cancel the call because ―everything just settled down.‖ Before it settled down,
Father tried to break up the fight, and Mother pushed him. Father called the
police. The police told Mother that she needed to leave because all of the
27
arguments and fighting were directed at her. Mother believed that the incident
constituted physical violence, not family violence.20
The second domestic violence call involved an argument between Father’s
mother and Kimberly, and Kimberly left. Mother was not involved.
d. Conditions of Houses
Mother did not recall how filthy her home was when Ashley Hambrick, the
CPS investigator, came before the children were removed. Mother did not recall
Hambrick’s telling her that the house had an odor because of the carpet. Mother
said that she cleaned her house every day and that she bought bug spray to get
rid of the cockroaches.
Mother also tried to make repairs to get the rent reduced, but the landlords
did not always help out like they had promised. Mother’s landlord Ms. Thorp
accused Mother of stealing a lawn mower and some tools. Mother said that Ms.
Thorp had asked Kimberly to spray paint the lawn mower silver, and she did.
The police investigated, and Kimberly took the lawn mower to the police station.
Mother had no convictions for theft at the time of the termination trial.
Mother believed that she had moved four times during this CPS case.
Mother did not move every time that she was behind on rent to avoid being
evicted, but she did move once or twice to avoid being evicted. Mother agreed
that did not show stability.
At the time of the termination trial, Mother had lived in her own home since
February 15, 2011, and had signed a lease through July 31, 2011. It was a two-
20
When asked about the fact that her children had reported that Mother
and Father threw things at each other, Mother said that she and Father did not
do that.
28
bedroom, one-bath home. The home was in better condition than the other
homes that Mother had lived in and did not require repairs. Mother had two beds
in each bedroom, couches in the den, and a kitchen table. Mother testified that
her home was appropriate.
e. Services
Mother recalled that her service plan required her to have healthy
relationships and to complete anger management classes, homemaking
services, and counseling. Mother testified that she had completed all of her
services.
Mother completed a healthy relations course through Friends of Family
and watched videos about domestic violence.
Mother testified that she had learned in her anger management classes
that when she becomes angry, she should take a walk, read a book, listen to the
radio, go to the park, go somewhere quiet, or sit on the porch.
Mother testified that she had completed the homemaker class and had
learned ―a lot‖ from her parenting classes, including how to keep the stove and
refrigerator clean with soap and water. Mother testified that she did not take
Barbra Haflich, who coordinated social services for Denton Independent School
District, up on her offer to help her with parenting-related issues because she
was scared and did not know what to do.21
21
Haflich testified that H.N.H.’s school contacted her because H.N.H. was
not verbalizing in the classroom and was ―a little bit behind‖ the other kids.
Haflich met with Mother and talked about how Haflich could help her, and Mother
agreed to meet Haflich at Evers Park Elementary to do individual work on
parenting-related issues in a voluntary program. Haflich called Mother a couple
of times, but Mother never called her back.
29
Mother started counseling with Dr. Greer around May 20, 2010, but the
counseling did not go well. Mother said that Greer said negative statements to
her that made her uncomfortable, but Mother could not recall the negative
statements. Mother was still attending counseling with Mark Dittloff at the time of
the trial. Mother told Dittloff that she wanted more counseling because she felt
like she was learning a lot from him. Mother said that she talked about her
children in counseling and about how to develop a support system. Mother said
that her support system included her mother, father, and sister, who supported
her financially but would not testify because they had prior CPS involvement.
Mother’s support system did not like Father. Mother had learned during her
counseling that her relationship with Father was not good for her. Mother agreed
that it had taken time to learn that because she had been with him a long time.
Mother had also learned that it was not a good environment for Mother, Father,
Kimberly, and Mother’s children to be living together.
Mother believed that she had abided by the portion of her service plan that
had ordered her not to engage in criminal activity. She said that an argument did
not constitute criminal activity and that although the police were called in
November when Kimberly attacked her, Mother was not arrested. She said that
the police told her to leave, and she agreed to leave in lieu of being arrested.
When Mother was asked whether it was important for a small child to have
stability, Mother asked what that was. Stability was explained as a child being
able to rely on his mother and father every day, and Mother said that was
important. Mother testified that as of the time of the termination trial, she was in
a stable home. However, Mother agreed that moving four times did not show her
children that her life was stable. Mother understood that the court orders
30
required her to maintain a stable home for at least six months and that she had
only been at her new address for two months at the time of the termination trial.
Mother was not required to provide monetary support for her children.
Mother bought them clothes, toys, and food totaling $30 each month while they
were in CPS’s care. Mother said that she gave each child $1.50 at the last visit.
Mother agreed that not paying to support her children, in kind or in cash, did not
show her children that her life was stable.
Mother completed her psychological evaluation May 25, 2010. Mother
testified that her IQ was sixty-five. Mother did not recall that Dr. Foster, who had
conducted Mother’s psychological exam, recommended that she go to MHMR.
Mother said that she went to MHMR on her own because ―everyone‖ was telling
her to go.
Mother went to MHMR in September 2010 and was told to return on
December 2, 2010. Mother went back to MHMR on December 2, 2010, and told
them that she was living with her mother. She said that she spent her days
cleaning the house and watching television with her children. Mother was told to
come back for a psychological exam to see if she was eligible for services.
Mother underwent the psychological exam on January 10, 2011. Mother
received a letter dated January 24, 2011, stating that she had a diagnosis of
mental retardation and was eligible for services.22
22
The letter in the record actually states that Mother ―does not meet the
criteria for Mental Retardation Services‖ and that the decision was made after a
face-to-face interview was performed, records were reviewed, and testing was
conducted.
31
Mother underwent a second evaluation in March 2011. Around March 21,
2011, a representative from MHMR came to Mother’s house and gave her
paperwork with a year-long plan for her.23 Mother requested services in
employment assistance and ―home community.‖
MHMR called to schedule appointments with Mother on days that she
already had appointments. Mother told MHMR that she was too busy to have
extra appointments because she was attending therapy Tuesdays, Thursdays,
and Saturdays every week.24 Mother testified that she believed that MHMR
understood her to say that she was busy all the time. Mother said that not being
willing to follow up on her MHMR issues did not show her children that she was
stable.
Mother agreed that she needed to demonstrate to CPS that she had
learned from her services, and she said that she had shown CPS that she had
developed healthy relationships and anger management. Mother testified that
she had made positive changes for the benefit of her children in counseling with
Dittloff. Mother had also leased a house on her own and was living on her own.
Mother said that she was a better parent now because ―[p]eople do change‖ and
because she had ―learned a lot from then until now.‖
23
The ―Person Directed Plan‖ states that Mother was uncertain that she
needed services; she ―just wanted her kids back.‖
24
Mother said that she was going to therapy for a car accident that
occurred on February 4. Before the accident occurred, Mother attended
counseling every two weeks.
32
f. Employment and Income
Mother did not graduate from high school; she dropped out when she was
in the eleventh grade because she had a baby. Mother recalled that she had a
one-day job in Lewisville that paid ten dollars an hour. Other than that, Mother
has never worked. Mother received $674 per month in SSI and $200 in food
stamps. Mother’s rent was $550, her electric bill was approximately $97, and her
part of the cell phone bill was $50 or $60 per month.
Dea Davis talked to Mother about working on her GED, and Mother
enrolled in a GED class in January 2011 and was attending consistently. Mother
was halfway through at the time of the trial, having completed thirty of the sixty
required hours.
Mother said that she had ―an assistant coach‖ who was supposed to be
helping her get a job. Mother testified that she was trying to get a job and had
applied at Express Personnel but that it had been a long time ago.
g. Visits
Mother testified that she visited her children almost every week that she
was scheduled for a visitation. Mother did not miss any visits while they were
scheduled in Denton, but she had missed two or three visits after they were
moved to Lewisville because Mother lived in Denton and had a hard time finding
transportation to Lewisville. Mother admitted that she had received rides from
Father, her mother, and her sister.25 Mother missed visits when Father’s truck
25
Riding the bus was not an option for Mother; Mother had a fear of riding
buses because when she was in ninth grade, she had ridden on a school bus
that hit four or five cars and injured several people.
33
broke down.26 During the visits, Mother read books to the children, played with
them, colored with them, talked with them, and asked how school was going.
h. Mother’s Request and Plans
Mother asked the trial court to return her children to her, if not on a
permanent basis, at least on a monitored return because she had completed her
services and had rented an appropriate home. Mother wanted to show the court
that she could take care of her children without Father and Kimberly. Mother
testified that if her children were returned to her, H.N.H. would attend Tomas
Rivera Elementary School, which was down the street from her house, but
Mother had not looked into whether her home was in that school’s district.
Mother also had not looked into daycare for her other two children.
5. Counselor’s Perspective
Mark Ditloff, a licensed professional counselor with the Counseling Center
of Denton, testified that he began meeting with Mother in October 2010 to help
her improve her decision-making.27 In order to improve Mother’s decision-
making, Ditloff talked to Mother about developing a support group made up of
people whom she could ask questions about the development of her children and
whom she could contact in emergencies. Mother talked about Father as a
26
Mother agreed that it was not Father’s responsibility to transport her to
her visits, but she still relied on him for transportation.
27
Mother attended eleven sessions and missed three; two of the absences
occurred when the times and dates were changed, and Mother confused the
times.
34
person that she could turn to,28 but Ditloff did not see any follow-through from
Mother regarding developing a proper support group.
Ditloff went over with Mother the results and recommendations from her
psychological evaluation, including whether she understood the findings
regarding her IQ. Ditloff thought Mother was confused at times about why CPS
was involved in her life; she understood the specifics, but she did not understand
why the circumstances led to the children’s removal. As they talked, Mother
seemed to appreciate the risks that her children had been placed in.
By January 2011, Mother used the counseling sessions for maintenance;
she came to the sessions with situations from her life and discussed the
decisions that she had made. Although Ditloff heard only Mother’s side of the
situations, he thought that there were times when Mother had made positive
decisions. For instance, Mother went to MHMR to seek employment assistance
and had completed most of her service plan. However, Ditloff said that Mother’s
decision-making did not go in the right direction when it related to dealing with
her Court-Appointed Special Advocate worker. Ditloff talked to Mother about
how she needed to be able to get along with her CASA worker, but Mother
eventually stopped talking with the CASA worker. Other times, Mother delayed
finding proper housing, continued to have contact with someone who had put her
children at risk, and failed to seek out ways to support her children financially.
The planned topic for the February 8 session was supposed to be Mother’s
house and how she could make sure that it was appropriate for her children. But
28
Mother had listed Father as her emergency contact when she reported
for counseling with Ditloff.
35
because Mother had been involved in a car accident, 29 the topic shifted to
discussing the pain that she was in.
Throughout the counseling sessions, Ditloff never saw Mother interact with
her children, so he could not evaluate her parenting skills. Ditloff, however,
testified that over time, Mother had developed more thought processes, and
getting her children back was ―usually the paramount issue in how she chose to
make those decisions.‖ Mother also became more comfortable using resources
for her situation and was using those resources to help her make better
decisions.
Ditloff opined that Mother had tried to improve her decision-making and to
deal with and change the situations that had led to the removal of her children.
Based on what Mother had told Ditloff, he believed that she had removed the risk
that she posed to her children. Ditloff believed that Mother was getting things in
place—i.e., a house—so that she would have the opportunity to care for her
children, but Ditloff agreed that there was more to caring and protecting children
than having a clean house. Ditloff testified that Mother needed more counseling
and that Mother wanted more counseling.
6. CASA Volunteer’s Perspective
a. Condition of Homes
Andrea Calloway, a CASA volunteer who was assigned to the case in April
2010, met with Father’s mother and learned that the condition that the children
were in at the time of the removal was a normal occurrence for them. Calloway
29
Ditloff was not aware that Mother was with Father during the car
accident.
36
first visited Mother’s home on Mockingbird Street on May 21, 2010. When she
walked into Mother’s house, she detected a ―really bad odor‖ that ―smelled a lot
like dog and smoke and just a combination of things.‖ The living room was
―picked up,‖ but the carpeting was very, very dirty and soiled. The kitchen
―looked pretty decent.‖ One of the bedrooms was filled with Kimberly’s
belongings, another room had pallets on the floor and either a twin bed or futon,
and the master bedroom contained a king-sized bed and a twin mattress propped
against the wall.
Calloway visited Mother’s second home and found that it was worse than
the one on Mockingbird. Calloway said that the odor ―was far worse‖ and that the
boys’ bedroom had a ―very, very powerful‖ urine odor that made Calloway ―a little
ill.‖ Mother told Calloway that they had a dog, but that did not explain all the
odors; Calloway told Mother that she needed to rip out the carpet and sanitize
the room. Calloway observed roaches and other bugs in the homes and testified
that those kinds of pests carry diseases and create a risk of physical harm for
children.
Calloway testified that Mother had reached agreements with most of her
landlords that she would perform repairs on the homes in exchange for lowered
rent, but Mother did not complete the repairs and was subjected to eviction.
Three or four times during the case, Calloway offered to take Mother apartment
hunting or house hunting, but Mother would not go because she would not be
able to stay with Kimberly and Father.
With regard to the home Mother rented before the termination trial,
Calloway said that it was appropriate. Calloway had spoken with Mother’s
landlord who said that Mother had signed a six-month lease. Calloway, however,
37
did not believe that Mother would be able to maintain her home because her
disability income barely covered the rent. Calloway said that Mother, Kim, and
Father with their combined income of $3,000 could not pay their bills without the
children in the house, so CASA was concerned how Mother could provide for
three children on $674.30
In her report, Calloway noted that ―CASA questions [Mother’s] ability to
maintain a safe and suitable home for her children.‖ Calloway explained that
CASA’s concern was that Mother went from one place to another four times
during the case and that the places were not appropriate for the children because
the houses were in very poor condition and were ―very, very dirty.‖ Calloway
testified that the instability in housing created emotional harm for the children and
that she believed that Mother’s children had fears regarding their permanent and
forever home.
b. Relationship with Father and Kimberly, Anger
Management, and Domestic Violence
Calloway testified that Mother did not regard her relationship with Kimberly
and Father as unusual; Mother did not see anything wrong with it. But Calloway
disapproved of the sexual relationship that Father had with Kimberly and Mother
while the children were living there. Calloway said that when women are being
shared by a man, it creates a very chaotic and violent environment. She said,
―There’s so much competition between the two women for the affections of this
30
Calloway noted in her report that CASA had grave concerns about
Mother’s ability to manage her money effectively. Calloway learned that Father
was the payee on Mother’s SSI card, but Calloway did not know whether Father
was still controlling Mother’s finances at the time of the termination trial.
38
man that the children get pushed aside and neglected, and it’s hard on them
emotionally.‖
Calloway talked to Mother about anger management when Mother became
upset after Father had abandoned her at the CPS office in June and told her that
he did not want her anymore. Calloway took Mother home, told her that she
needed to get away from Father and Kimberly, and offered her help to do that.
Calloway later went back to the home on Mockingbird to perform an
unannounced visit and saw Mother, Father, and Kimberly leaving together.
After Mother completed anger management in June or July 2010, there
was another incident of domestic violence in August 2010, which indicated to
Calloway that Mother had not learned anything in her anger management class.
Mother called Calloway on November 7, 2010, which was the day after one of the
domestic violence incidents. Mother told Calloway that the previous night, Father
had kicked her out, had pulled her hair, had kicked down the door, had broken a
window, and had punched a hole in the wall, and the police were called.
Calloway was concerned about the family violence between Father,
Kimberly, and Mother, which occurred more often than just the two domestic
disturbances that the police responded to. The children told Calloway that there
was ―a lot of screaming and yelling, throwing things, [and] hitting‖ and that it
scared them. Calloway testified that family violence in the home created a risk of
physical or emotional abuse for the children and that the children were at risk of
physical or emotional harm whenever they saw family violence in the home.
Calloway was also worried about the children’s health and safety because
Kimberly had proven to be violent with children and that she sometimes cared for
Mother’s children.
39
Calloway said that the relationships the children observed in the home
affected their future development as young men and women because the
children mimicked the behaviors demonstrated by the adults, who served as the
children’s role models; it also affected the way that the children perceived how
they should treat members of the opposite sex. Calloway testified that she
believed that the type of behavior that the family engaged in was harmful for the
children and was not appropriate.
Although Mother had not lived with Father and Kimberly since December
2010, Calloway did not believe that Mother had ended her relationship with
Father. Calloway had received information from CPS that Mother had been seen
with Father and Kimberly since Mother had moved into her own home. Calloway
was also aware that Mother was with Father as recently as the Friday afternoon
prior to the termination trial. Thus, Calloway had not seen anything that would
indicate to her that Mother, Father, or Kimberly had alleviated the risk of harm to
the children.
c. Support System
Calloway interviewed Mother’s extended family and did not believe that
they would be sufficient to support Mother and her three children; Calloway said
that ―[t]heir heart is in the right place, but they’re afraid of [Father]‖ and that they
were raising some of their other grandchildren. Early in the case, Mother
rejected joint custody with a paternal aunt and uncle who were willing to help her
manage her money and maintain a home; Calloway said that Mother did not give
a reason for not wanting to move to San Antonio to take advantage of their help.
Calloway further testified that she knew that the aunt had kidney problems and
that this was a concern with CPS as far as placement.
40
d. Services
Calloway talked to Mother about her services and told her that it was very
important to complete all of her services. Calloway told Mother that it was not
enough to ―just check the boxes‖; CASA expected to see a significant change in
her lifestyle and behaviors in order for a recommendation to be made that her
children should be returned to her.31 Calloway said that it does a parent no good
to work the services if she does not learn anything.
Mother completed First Step, but Calloway did not believe that Mother had
benefitted from the program. Calloway testified that after Mother had completed
the program, ―the home got worse‖; there was even more damage to the home
due to domestic violence (i.e., windows were broken out), and the home was
dirty (i.e., the floors were covered in grit such that Calloway made a ―crunch‖
noise walking across the floor).
A referral was made for Mother to attend Denton County Friends of the
Family so that Mother would extricate herself from Father and Kimberly. Mother
did not benefit from that service, and her participation did not sufficiently alleviate
the risk of abuse to her children.
Mother had not refrained from engaging in criminal activity; she had
engaged in domestic violence in November 2010. Calloway, however, was not
aware that Mother had walked away from Kimberly, nor was Calloway aware that
Mother had to use self-defense to get out of the situation.
31
Calloway admitted that the court-ordered service plan did not require
Mother to benefit from the services, only to complete them.
41
At the temporary hearing, the Department did not ask Mother to pay
money in child support because they believed that would be setting her up to fail.
The Department, instead, requested that Mother provide in-kind support.
Calloway observed that Mother usually brought food to the visits and that during
the visits that occurred near the children’s birthdays, Mother brought some
clothing and toys. Calloway did not believe that the support Mother had provided
for the children was ―anywhere close to remotely adequate to support three
children,‖ nor did she believe that Mother had done her best to support her
children while they were in CPS’s care.
Calloway summarized that Mother had completed anger management
classes, a healthy relations class through Friends of the Family, a psychological
examination, and homemaker classes; had not been convicted of a crime; had
appropriate visits with her children; and had participated in counseling through
MHMR. Mother had not lived in her home for six months as required under the
plan, but her home at the time of the termination trial was suitable.
e. CASA’s Recommendation and Plan
Calloway did not believe that Mother could appropriately parent her
children. As a result, Calloway asked the trial court to terminate Mother’s
parental rights to her three children because CASA believed it was in the
children’s best interest.32
32
Calloway noted that the children were in a foster home with parents who
were willing to adopt them.
42
7. Attorney Ad Litem’s Perspective
The attorney ad litem for the children testified that
this case is really unfortunate because I don’t think [Mother] is a bad
person at all. I have no doubt she loves her kids. My concern,
though, is for -- is her ability to properly care for and protect her kids.
And all we have to go by is the track record.
I kept listening for something that would assure me so I could
assure the court that that she could properly care for her kids. I
haven’t been able to find one. And we have the Spic and Span
incident [sic] and we had the 2008 burn incident and we had the
January referral and then the March removal.
And I heard her saying that she was blaming [Kimberly] for the
removal of her kids, but that’s just not the case. We heard her testify
the kids weren’t dirty when they were removed, and we all know
that’s not true.
And I do have to say that I admire her for being here,
representing herself. I mean, everybody else has abandoned her
but she’s here, and I admire that about her. But -- and I kept looking
for every alternative to termination, but I haven’t been able to find it.
So for the safety of the kids, I would have to join with CASA and
CPS and recommend termination.
F. Trial Court’s Disposition
After hearing the above testimony, the trial court found by clear and
convincing evidence that Mother had knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered the physical or
emotional well-being of the children, that Mother had engaged in conduct or
knowingly placed the children with persons who had engaged in conduct that
endangered the physical or emotional well-being of the children, and that
43
termination of the parent-child relationship between Mother and H.N.H.; J.L.H.,
Jr.; and J.N.H. was in the children’s best interest.33
III. LEGALLY SUFFICIENT EVIDENCE TO SUPPORT ENDANGERMENT FINDINGS
In her first, second, fourth, fifth, seventh, and eighth points, Mother argues
that there is legally insufficient evidence to establish the termination grounds
under family code section 161.001(1)(D) and (E) for each of her three children.
The Department argues that there was ample evidence to support the trial court’s
conduct and environment findings because the trial court was entitled to find that
Mother endangered her three children by failing to maintain safe and stable
housing, by participating in domestic violence, by engaging in and continuing
inappropriate relationships, by failing to adequately and appropriately care for her
children by herself, and by failing to establish a support system to assist her.
A. Burden of Proof and Standards of Review
A parent’s rights to ―the companionship, care, custody, and management‖
of 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
33
The trial court also terminated Father’s parental rights to H.N.H.; J.L.H.,
Jr.; and J.N.H., but Father did not appeal.
44
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. See Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings
and strictly construe involuntary termination statutes in favor of the parent.
Holick, 685 S.W.2d at 20–21; In re 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 (West Supp.
2011); 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
45
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 evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
46
B. Law on Endangerment
Endangerment 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.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). To prove
endangerment under subsection (D), the Department had to prove that Mother
knowingly placed or allowed her children to remain in conditions or surroundings
that endangered their physical or emotional well-being. See Tex. Fam. Code
Ann. § 161.001(1)(D); In re J.A.J., 225 S.W.3d 621, 625 (Tex. App.—Houston
[14th Dist.] 2006) (op. on reh’g), judgm’t aff’d in part, rev’d in part, 243 S.W.3d
611 (Tex. 2007). Subsection (D) focuses on the suitability of the children’s living
conditions. J.A.J., 225 S.W.3d at 626. Thus, under subsection (D), it must be
the environment itself that causes the children’s physical or emotional well-being
to be endangered, not the parent’s conduct. Id. at 627.
Under subsection (E), the relevant inquiry is whether evidence exists that
the endangerment of the children’s physical well-being was the direct result of
Mother’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 subsection (E) must be based on more than a single act or
omission; a voluntary, deliberate, and conscious course of conduct by the parent
is required. 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
47
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). As a general rule, conduct that subjects children to a life of
uncertainty and instability endangers the children’s physical and emotional well-
being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet.
denied). To determine whether termination is necessary, courts may look to
parental conduct occurring both before and after the children’s births. In re D.M.,
58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
C. Evidence Is Legally Sufficient to Support Endangerment Findings
In determining whether the evidence is legally sufficient to support
termination of Mother’s parental rights pursuant to subsection (D) or (E), we look
at whether Mother (1) knowingly placed or knowingly allowed her children to
remain in conditions or surroundings that endangered their physical or emotional
well-being or (2) engaged in conduct or knowingly placed her children with
persons who engaged in conduct that endangered their physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). The Department’s
brief focuses on the following acts or omissions by Mother that it contends
support termination of Mother’s rights under (D) and (E): failing to maintain safe
and stable housing, participating in domestic violence, engaging in and
continuing inappropriate relationships, failing to adequately and appropriately
care for her children by herself, and failing to establish a support system to assist
48
her. We will examine all of the evidence in the record, focusing on these
allegations.
The places that Mother chose for her family to live exhibited unsafe living
conditions for children. The homes had roaches, flies, terrible odors, and broken
windows that made heating difficult. Rotten food was also found left out in the
kitchen at one of the houses. This is some evidence that Mother knowingly
placed or knowingly allowed her children to remain in conditions or surroundings
that endangered their physical or emotional well-being. See In re K.M.B., 91
S.W.3d 18, 24–25 (Tex. App.—Fort Worth 2002, no pet.) (holding that evidence
that Mother exposed children to homes with roaches and lice problems, animal
feces, terrible odors, and general filth supported environmental endangerment
finding).
Additionally, the record demonstrates that the children had witnessed
domestic violence and inappropriate relationships. The children lived in a house
with three adults and witnessed the three adults screaming, yelling, hitting, and
throwing things. The CASA volunteer testified that this behavior scared the
children, and CPS was concerned that one of the children could be injured. The
record contains evidence that Mother had used a toy truck to hit one of
Kimberly’s children and had spanked her children and Kimberly’s children with a
belt. Although there is no evidence that Mother physically abused her own
children, Mother often allowed Kimberly to watch Mother’s children, and Kimberly
admitted to causing the injuries on her child that led to the removal of all of the
49
children in the house. Moreover, the children knew that Father slept with Mother
some nights and with Kimberly some nights; yet, Mother did not seem to
understand the impropriety of the living arrangements—even after CPS’s
repeated warnings—and continued to live with Father and Kimberly for
approximately eight months after Mother’s children were removed. Mother also
continued to associate with Father and Kimberly up until a month before the
termination trial and had not removed them from her cell phone plan at the time
of the termination trial. This is some evidence that Mother’s conduct, as well as
the conduct of those she exposed her children to, endangered them. See In re
M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (holding that
evidence of exposing a child to domestic violence supports an endangerment
finding).
The record also demonstrates that Mother was unable to adequately
provide for her children. Mother had virtually no employment history and had
only recently worked towards obtaining her GED. Mother depended on Father
and Kimberly to help provide her and her children with basic necessities,
including food and housing. Mother brought in-kind support in the form of food
and gifts to the visits, but Calloway did not believe that the support Mother had
provided for the children was ―anywhere close to remotely adequate to support
three children.‖ Nor did Calloway believe that Mother had done her best to
support her children while they were in CPS care. After living at four different
residences during the time the case was pending, Mother rented her own home
50
approximately two months before the termination trial. But the record revealed
that Mother’s finances would make it almost impossible for her to continue to live
there and that the children had fears regarding their permanent and forever
home. This is some evidence that Mother’s conduct, including omissions,
endangered her children’s physical or emotional well-being and that Mother
exposed her children to an unstable environment that endangered her children’s
physical or emotional well-being. See In re T.C., No. 10-10-00207-CV, 2010 WL
4983512, at *4–5 (Tex. App.—Waco Dec. 1, 2010, pet. denied) (mem. op.)
(holding that although there were recent developments that showed
improvements in mother’s stability, the trial court could reasonably have
determined that any evidence of improvement was short-lived and outweighed by
the extent of her prior history; thus, the evidence supported that mother, by living
in fifteen locations among other things, had engaged in conduct that endangered
the child’s physical and emotional well-being).
The record also demonstrates that Mother was unable to properly care for
her children. Mother did not seek treatment for H.N.H. when she received
second-degree burns. After a concerned relative called in a referral, police
responded and immediately called EMS. The four-hour delay that occurred
before H.N.H. received treatment for second-degree burns, which required an
overnight hospital stay, was ―pretty significant.‖ The record also contains no
evidence that Mother sought treatment for H.N.H. when she poured Mop & Glo
on herself at age one. Mother failed to get up in time to feed H.N.H. before she
51
went to school, which resulted in stomachaches and which the record revealed
could harm H.N.H.’s physical and emotional development. Mother failed to treat
H.N.H.’s asthma, and all of the children were dirty. Due to Mother’s verbal IQ,
the record revealed that she was likely to have trouble following directions, like
those for asthma and lice medication, which created significant risks to her
children. Moreover, the record is replete with evidence that Mother had failed to
properly treat and eradicate lice in her children’s hair for approximately two
years. Furthermore, Mother failed to establish a proper support system to help
her care for her children. This is some evidence that Mother’s conduct, including
omissions, endangered the children’s physical or emotional well-being. See In re
S.H.A., 728 S.W.2d 73, 87 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (holding that
evidence that parents did not properly feed child and did not seek appropriate
medical treatment for child was some evidence to support jury’s findings that
parents had engaged in conduct which endangered child’s physical or emotional
well-being).
Viewing all the evidence in the light most favorable to the termination
judgment and disregarding all contrary evidence that a reasonable factfinder
could disregard, we hold that some evidence exists that will support a factfinder’s
firm conviction or belief that Mother violated subsections (D) and (E). We thus
hold that the evidence is legally sufficient to support termination of Mother’s
parental rights to H.N.H.; J.L.H., Jr.; and J.N.H. under subsections (D) and (E).
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); K.M.B., 91 S.W.3d at 24–25
52
(holding evidence legally sufficient to support trial court’s 161.001(1)(D) finding
because evidence showed that Mother exposed children to homes with roaches
and lice problems, animal feces, terrible odors, and general filth); In re S.K., 198
S.W.3d 899, 906–07 (Tex. App.—Dallas 2006, pet. denied) (holding evidence
legally sufficient to support trial court’s 161.001(1)(E)34 finding because evidence
showed that children were dirty regularly and often had lice, that parents
exhibited limited parenting skills and did not understand issues involved in
children’s developmental needs, and that CPS had seen no changes in parents’
pattern of behavior through course of case); see also In re Z.A.S., No. 02-11-
00040-CV, 2011 WL 3795231, at *15–16 (Tex. App.—Fort Worth Aug. 25, 2011,
no pet.) (mem. op.) (holding evidence legally sufficient to support trial court’s
161.001(1)(D) and (E) findings because evidence showed that Mother, among
other things, had moved frequently, had limited employment, and had chosen
homes with unsafe living conditions for children); In re J.G.K., No. 02-10-00188-
CV, 2011 WL 2518800, at *39–41 (Tex. App.—Fort Worth June 23, 2011, no
pet.) (mem. op.) (holding evidence legally sufficient to support trial court’s
161.001(1)(D) and (E) findings because evidence showed that Mother, among
other things, had failed to seek medical treatment for child, had moved
34
Although the S.K. opinion cites section 161.001(1)(D), it is clear from the
context—which states that ―Mother engaged in conduct and Father knowingly
placed the children with a person who engaged in conduct which endangered the
physical or emotional well-being of [the children]‖—that section 161.001(1)(E) is
the subsection that was intended.
53
frequently, had limited employment, and had exposed her children to domestic
violence); In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at *4–5 (Tex.
App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (holding evidence legally
sufficient to support trial court’s 161.001(1)(D) and (E) findings because evidence
showed that father had engaged in conduct that subjected his children to a life of
instability and uncertainty, including living at more than five residences over five
years and living in residences that were ―genuinely dirty‖ and in disarray; had
used illegal drugs; had engaged in domestic violence; and had exhibited anger
issues).35
We therefore overrule Mother’s first, second, fourth, fifth, seventh, and
eighth points. Because termination based on one subsection of section
161.001(1) will support termination, we need not address Mother’s third, sixth,
and ninth points challenging the termination of her parental rights based on
section 161.001(1)(O). See Tex. Fam. Code Ann. § 161.001(1); Tex. R. App. P.
47.1 (requiring appellate court to address only issues necessary to final
disposition of the appeal).
IV. CONCLUSION
35
Although Mother claims that the evidence is insufficient to support the
termination of her parental rights to J.L.H., Jr. and J.N.H. because ―there is
virtually no mention of [them] throughout the entire proceedings,‖ Mother’s
argument fails because all of the children were exposed to the unstable and
unsafe living conditions, domestic violence, and lice.
54
Having disposed of every point necessary for final disposition of this
appeal, we affirm the trial court’s judgment terminating Mother’s parental rights to
H.N.H.; J.L.H., Jr.; and J.N.H.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: January 12, 2012
55