in the Interest of H.N.H. J.L.H., Jr. And J.N.H., the Children

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

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1
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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