Opinion issued=20
February 16, 2006
In=20
The
Court of =
Appeals
For The
First District of=20
Texas
NO. =
01-05-00213-CV
NO. =
01-05-00214-CV
NO. =
01-05-00373-CV
CRYSTAL LEE WYATT,=20
Appellant
V.
DEPARTMENT OF FAMILY AND PROTECTIVE =
SERVICES,=20
Appellee
On Appeal from the 315th District=20
Court
Harris County, =
Texas
Trial Court Cause Nos. 1998-05671J, =
2003-06758J,=20
and 2003-09011J
O P I N I O N
<=
/SPAN>Appellant,=20
Crystal Lee Wyatt, appeals the termination of her parental rights =
to her=20
children, D.R.A., M.S., and A.W. ![3DFootnote](3D"")
Appellant challenges the legal and =
factual=20
sufficiency of the evidence to support the trial court=E2=80=99s =
judgments. We=20
affirm.
BACKGROUND
<=
/SPAN>Appellant=E2=80=99s=20
first child, D.R.A., was born when appellant was 15 years old. =
When D.R.A.=20
was about one year old, the Department of Family and Protective =
Services=20
(hereinafter =E2=80=9CCPS=E2=80=9D) removed him from appellant and =
placed him with his=20
father, Roy Apps, after discovering a serious burn, for which =
appellant=20
had not sought medical treatment, on D.R.A.=E2=80=99s foot. When =
D.R.A. was five=20
years old, CPS learned that Apps had been charged with sexual =
abuse of his=20
teen-aged daughter. In July 2003, CPS removed D.R.A. from =
Apps=E2=80=99s=20
possession and returned him to appellant. At this time, appellant =
had a=20
second child, M.S., was pregnant, and had no employment or =
permanent place=20
to live. Stacy Ahmed, a licensed social worker and CPS caseworker, =
was=20
assigned as appellant=E2=80=99s caseworker. Ahmed did a family =
assessment, during=20
which appellant said that she had used cocaine, heroin, and PCP in =
the=20
past. Ahmed included this information in her report. =
<=
/SPAN>In=20
August 2003, Ahmed went to the motel where appellant and her =
children were=20
staying and found appellant upset and yelling at D.R.A., who was =
in the=20
bed with the sheet covering him up to his eyes. Ahmed also saw =
that M.S.,=20
who was about 17 months old, had a serious burn on her arm. =
Appellant said=20
that M.S. had burned herself with the curling iron. Ahmed asked if =
appellant had taken M.S. to the doctor. Appellant said that she =
had not,=20
but that M.S. was fine. When Ahmed insisted that they take M.S. to =
the=20
doctor, appellant became angry and began yelling at Ahmed. =
Finally,=20
appellant agreed to go to the nearby CPS clinic if Ahmed would =
first pick=20
up appellant=E2=80=99s friend, Kim Jackson. At the clinic, the =
doctor examined=20
M.S. and told Ahmed that the injuries were not consistent with =
appellant=E2=80=99s=20
explanation of the occurrence. When informed of this, appellant =
again=20
became angry, and a security guard was called because of the =
disturbance.=20
While waiting to see the doctor, Ahmed checked the messages on her =
cell=20
phone and found a message that had been left by appellant the =
previous=20
evening. Appellant was saying that she was =E2=80=9Ctired of this =
shit=E2=80=9D and that=20
CPS could come pick up D.R.A. and she was taking M.S. to her =
daddy=E2=80=99s=20
house. Ahmed was concerned about M.S.=E2=80=99s injury and =
appellant=E2=80=99s behavior.=20
She was also concerned because of appellant=E2=80=99s history with =
CPS and=20
possible drug abuse, which appellant denied. Ahmed called her =
supervisor=20
and, after a discussion with her supervisor, took the children =
into=20
protective custody.
<=
/SPAN>Appellant=20
gave birth to A.W. on October 31, 2003. Because of the risks =
already=20
existing, CPS took immediate custody of A.W. Initially, appellant =
told her=20
new caseworker, Rebecca Moore, that she was going to give A.W. to =
someone,=20
but she later changed her mind. A.W. was born with heart problems =
and was=20
diagnosed as being developmentally delayed, showing deficits in =
her=20
physical and mental development. From the age of three months, =
A.W. saw an=20
occupational therapist twice a week and, at the time of trial, was =
also=20
seeing a speech therapist twice a week. Thus, her foster parents =
must take=20
her to therapy four days a week. At the time of trial, A.W. showed =
improvement, although she still did not have coordination or =
cognitive=20
skills appropriate for a 15-month-old child.
<=
/SPAN>Because=20
Moore thought that appellant did not understand the extent of =
A.W.=E2=80=99s=20
special needs, she spoke to appellant about it at each monthly =
visit. At a=20
court hearing, Moore again brought up the subject of =
A.W.=E2=80=99s special needs=20
and the therapy A.W. was receiving. Appellant yelled at Moore and =
said=20
that she didn=E2=80=99t understand why Moore kept bringing up the =
subject. Moore=20
responded that appellant needed to know the information to provide =
for=20
A.W.=E2=80=99s needs.
<=
/SPAN>From=20
the time that CPS took possession of appellant=E2=80=99s children =
until the time=20
of the first trial, appellant lived in a number of locations, =
staying in=20
one place from a few weeks to three or four months. These places =
included=20
the home of her aunt, the home of her grandmother in Liberty, an =
apartment=20
owned by her uncle, her godmother=E2=80=99s home, and an apartment =
she shared with=20
her friend, Kim. She left the home in Liberty because she had a =
fight with=20
her grandmother, and she moved out of one apartment because she =
fought=20
with some old acquaintances who moved into the neighborhood. Moore =
wrote a=20
letter to help appellant get government-subsidized housing and =
gave=20
appellant copies of the children=E2=80=99s birth certificates and =
social security=20
cards. Appellant lost all these documents and called Moore to get=20
additional copies. At the first trial, appellant said she had =
obtained the=20
government-subsidized housing, but had not moved in because the=20
electricity was not yet turned on because she gave the electric =
company=20
the wrong address. She moved into the apartment a few days before =
the=20
second trial began.
<=
/SPAN>After=20
removing the children from appellant=E2=80=99s possession, CPS =
arranged for=20
supervised family visitation twice a month. Because A.W. was taken =
from=20
appellant immediately after birth, CPS arranged for appellant to =
visit her=20
once each week. However, appellant did not show up for many of =
these=20
additional visits and told CPS that she wanted to visit all the =
children=20
together.
<=
/SPAN>Appellant=20
also missed many of her visits with the children. Moore testified =
that=20
appellant attended only 20 of 34 possible visits with A.W. Moore =
estimated=20
that appellant attended 25 of 30 possible visits with D.R.A. and =
that she=20
was about 25 or 30 minutes late for 5 of those visits. On several=20
occasions, appellant called Moore 10 or 15 minutes before the =
meeting time=20
to say that she would not attend, usually because of the lack of=20
transportation. Because the foster families lived about one hour =
from=20
Houston, this late cancellation resulted in their making a =
needless trip.=20
Moore also testified that appellant left some of the visits early, =
saying=20
that she had some other appointments. When appellant did attend, =
she was=20
almost always accompanied by one of two friends, Kim or Mike, who =
had=20
given her a ride and then participated in the visits. The friend =
would sit=20
on the floor and play with the children while appellant sat on the =
sofa=20
and waited for the children to come to her. Appellant was observed =
being=20
highly critical of D.R.A. regarding his appearance, saying his =
hair was=20
ugly, his breath stank, and his nails were dirty and also saying, =
in his=20
presence, that she did not want him. Her treatment of D.R.A. =
improved=20
somewhat after appellant=E2=80=99s parenting classes. =
<=
/SPAN>Appellant=E2=80=99s=20
employment history, as it appears in the record, consisted of a =
part-time=20
job with a home health service and a job at Wendy=E2=80=99s. The =
home health=20
service job, which paid $5.50 an hour, began in June or July 2004 =
and=20
lasted about two months. Appellant said that she worked about 10 =
hours a=20
week and quit the job because of the hours and the pay. Appellant=20
testified that the job at Wendy=E2=80=99s, which paid $6 an hour, =
began as part=20
time and became full time in the middle of December. However, she =
also=20
testified that she worked only 28 to 30 hours a week and agreed =
that that=20
was part time. At the first trial, appellant testified that she =
had not=20
been to work in almost three weeks. She said that she had been in =
the=20
hospital for a couple of days and had not returned to work since =
because=20
she thought she was going to have surgery. Nevertheless, she was =
certain=20
that she still had the job. At the second trial, she said that she =
had=20
started working again the previous week.
<=
/SPAN>The=20
record reveals that appellant has a significant problem with =
anger.=20
Appellant was observed yelling or creating a disturbance at the =
motel=20
where she was living with her two older children, at the clinic =
where M.S.=20
was taken for treatment, at a family visitation, during telephone =
calls=20
with her caseworker, in a confrontation with her CPS volunteer, =
and at=20
court hearings. Appellant participated in an anger management =
program, and=20
when she completed it, was supposed to continue working on anger=20
management through her therapist. Appellant testified that she =
learned=20
several ways to manage her anger, but that she did not use those=20
techniques because she did not have an anger problem. =
<=
/SPAN>Appellant=E2=80=99s=20
trial date was continued twice at Moore=E2=80=99s request because =
Moore thought=20
appellant was making progress in the services being offered to her =
and=20
wanted to give appellant more time to complete the services. At an =
October=20
2004 hearing, the trial court ordered appellant to pay $50 per =
month child=20
support for M.S. Appellant never made any payments and explained =
during=20
the first trial that she could not afford them. However, she =
testified=20
that she spent $500 on Christmas gifts for the children that year. =
<=
/SPAN>Appellant=20
was also ordered to pay $50 child support for D.R.A. At the second =
trial,=20
when asked why she had not made any payments for D.R.A., she =
stated, =E2=80=9CIt=E2=80=99s=20
not that I couldn=E2=80=99t. [It=E2=80=99s] that I didn=E2=80=99t =
want to. I=E2=80=99ll put it like that.=20
. . . And I can=E2=80=99t apologize for it. It=E2=80=99s just that =
I didn=E2=80=99t feel like=20
bringing the money down here.=E2=80=9D
<=
/SPAN>Other=20
services CPS required appellant to participate in were parenting =
classes=20
and drug assessment and treatment. Appellant apparently told the =
drug=20
assessment agency that she had only used alcohol and marijuana. =
Moore=20
testified that she was concerned that appellant=E2=80=99s drug =
assessment was not=20
accurate and that she should be reassessed because the CPS file =
showed=20
that appellant had told Ahmed that she had used PCP, cocaine, and =
heroin.=20
<=
/SPAN>At=20
the second trial, appellant testified that she did not tell Ahmed =
that she=20
had used the =E2=80=9Cexact drugs. I told her the drugs that I =
used that was=20
inside that. It was, like, called =E2=80=98drank=E2=80=99 and =
that=E2=80=99s what she had got it=20
misunderstood by that.=E2=80=9D She said that =
=E2=80=9CDrank=E2=80=9D is codeine with=20
promethazine, that it has heroin, cocaine, and PCP inside, and =
that it is=20
a drink. She said that she did not explain this to the drug =
assessor=20
because the assessor did not ask.
<=
/SPAN>Appellant=20
participated in and completed both the parenting classes and the =
drug=20
treatment services. She was also required to submit to random =
urinalyses.=20
In October 2004, after she had completed the drug treatment =
program, one=20
of her urinalyses was adulterated, indicating that appellant might =
have=20
been attempting to hide something. The re-test was also =
adulterated.=20
Appellant was ordered to have a hair-follicle test, but the =
testing agency=20
was unable to contact her, and she did not contact the agency even =
though=20
Moore had given her the necessary information. On January 21, =
2005, five=20
days before appellant=E2=80=99s first trial, her urinalysis was =
positive for=20
marijuana and cocaine.
<=
/SPAN>Appellant=20
was not present for the first day of the first trial. Her attorney =
explained that appellant had just returned from an emergency trip =
to=20
Liberty to care for her grandfather and had no transportation to =
court.=20
After clarifying that appellant was in town, the trial court =
denied=20
appellant=E2=80=99s motion for a continuance. On the second day of =
trial, the=20
proceedings were to begin at 9 a.m. Appellant arrived late and was =
sworn=20
in at 10:55 a.m.
<=
/SPAN>At=20
the first trial, appellant testified that she believed she had =
shown=20
stability in her employment and her housing because, when she =
could move=20
into her new apartment, which was to cost only $48 per month, she =
would=20
have everything under control. Admitting that in the past she had =
not=20
stayed in one place more than a few months, she said that things =
would be=20
different now because she had a job. Appellant testified that she =
had=20
arranged for her children to be in a government-subsidized =
day-care=20
program that is open 24 hours a day and provides transportation =
for the=20
children. She further testified that she would get Medicaid for =
the=20
children and that friends would provide furniture for her =
apartment.=20
<=
/SPAN>Appellant=20
testified that things had changed since December because her =
mother had=20
gotten a car and could provide transportation. However, appellant =
said=20
that she would not let her mother baby-sit with the children =
because her=20
mother had been abusive to appellant and her brother when they =
were=20
children.
<=
/SPAN>Although=20
appellant said that she did not know A.W.=E2=80=99s medical and =
developmental=20
needs, she said that she would not have a problem with taking A.W. =
to his=20
therapy four days a week. However, she admitted that she has a =
hard time=20
getting to places on time.
<=
/SPAN>When=20
asked about the positive results on her latest urinalysis, =
appellant said=20
that she had smoked marijuana at her birthday party on January 12 =
because=20
she just wanted to have fun. She denied using cocaine and implied =
that=20
someone at the party must have =E2=80=9Claced=E2=80=9D something. =
She said she would not=20
continue using any drugs. She admitted that, when she smoked the =
marijuana=20
on January 12, she knew that any drug use would jeopardize her =
chance of=20
getting her children back.
<=
/SPAN>Appellant=20
admitted that, at first, she did not want her children to be =
returned and=20
was not trying to follow CPS=E2=80=99s program. She testified that =
she now wants=20
her children and thinks she can be a good mother. =
DISCUSSION
Standard of=20
Review
<=
/SPAN>The=20
natural right that exists between parents and their children is =
one of=20
constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d =
349, 352=20
(Tex. 1976). To terminate the parent-child relationship, a court =
must find=20
by clear and convincing evidence that the parent has committed one =
of the=20
acts or omissions listed in section 161.001(1) of the Family Code =
and that=20
termination is in the best interest of the child. See Tex. Fam. Code Ann. =
=C2=A7 161.001(1),=20
(2) (Vernon Supp. 2005). The failure to prove either of these =
elements=20
will prevent termination of a parent=E2=80=99s rights. See In =
re U.P., 105=20
S.W.3d 222, 229 (Tex. App.=E2=80=94 Houston [14th Dist.] 2003, =
pet. denied)=20
(=E2=80=9CProof of one element does not relieve petitioner from =
establishing the=20
other.=E2=80=9D). If we determine that the trial court=E2=80=99s =
termination was proper=20
under any one of the subsections of section 161.001(1), we need =
not reach=20
the challenges to any of the remaining subsections. Avery v. =
State,=20
963 S.W.2d 550, 552 (Tex. App.=E2=80=94Houston [1st Dist.] 1997, =
no=20
writ).
<=
/SPAN>In=20
termination-of-parental-rights cases, the State must support its=20
allegations by clear and convincing evidence. Santosky v. =
Kramer,=20
455 U.S. 745, 747=E2=80=9348, 102 S. Ct. 1388, 1391=E2=80=9392 =
(1982); In re=20
B.L.D., 113 S.W.3d 340, 353=E2=80=9354 (Tex. 2003). The proof =
must produce in=20
the mind of the trier of fact a firm belief or conviction as to =
the truth=20
of the allegations sought to be established. In re J.F.C., =
96=20
S.W.3d 256, 264 (Tex. 2002). In reviewing a =
termination-of-parental-rights=20
case for legal sufficiency, we must determine whether the evidence =
is such=20
that a fact finder could reasonably form a firm belief or =
conviction about=20
the truth of the matter on which the State bears the burden of =
proof.=20
Id. at 266. In a factual-sufficiency review, we =
=E2=80=9Cconsider whether=20
disputed evidence is such that a reasonable factfinder could not =
have=20
resolved that disputed evidence in favor of its finding.=E2=80=9D =
If that evidence=20
is =E2=80=9Cso significant that a factfinder could not reasonably =
have formed a=20
firm belief or conviction, then the evidence is factually =
insufficient.=E2=80=9D=20
Id.
Appellant=E2=80=99s=20
Conduct
<=
/SPAN>In=20
her second issue relating to M.S. and A.W. and her first issue =
relating to=20
D.R.A., appellant contends that there was no evidence or, in the=20
alternative, insufficient evidence to support a finding by the =
trial=20
court
that appellant engaged in conduct that =
endangered=20
the physical and emotional well-being of the children, pursuant to =
section=20
161.001(1)(E) of the Family Code. See Tex. Fam. Code Ann.=20
=C2=A7 161.001(1)(E) (Vernon Supp. 2005). In her argument =
relating to M.S.=20
and A.W., appellant discusses her anger issues without relating =
that anger=20
to any possible effect on the children. Appellant then argues that =
there=20
was no relevant testimony regarding her conduct with M.S. and =
A.W., except=20
that she had brought to visitation friends who interacted with the =
children more than appellant did, and that there was no evidence =
of how=20
this harmed the children. Appellant points out that A.W. was =
removed from=20
appellant at birth and that there is no evidence that appellant =
did=20
anything to harm her. Regarding her failure to disclose, during =
her drug=20
assessment, her prior use of PCP, cocaine, and possibly heroin, =
appellant=20
simply asserts that she had complied with the requirements of her =
plan=20
except for the one positive urinalysis. In her argument relating =
to=20
D.R.A., appellant discusses her various moves and states that =
there is no=20
evidence of the conditions of these homes or that the conditions =
harmed=20
D.R.A. Appellant=E2=80=99s arguments miss the point. =
<=
/SPAN>Both=20
of the children that appellant had in her custody for any length =
of=20
time=E2=80=94M.S. and D.R.A.=E2=80=94had severe burns, and these =
burns were never=20
satisfactorily explained. Appellant said that she was not at home =
when=20
D.R.A. was burned. She said that M.S. burned herself with a =
curling iron,=20
but she never explained how M.S. got the hot curling iron. =
Furthermore,=20
she did not take either child for any medical treatment of the =
burns. In=20
addition, she resisted when her caseworker insisted on taking M.S. =
to a=20
clinic and agreed to go only on the condition that her friend Kim =
go with=20
them. At the clinic, the doctor said that the burns were not =
consistent=20
with appellant=E2=80=99s explanation. Given the similarity of the =
two incidents,=20
appellant=E2=80=99s conduct showed a pattern that had not changed =
in the=20
intervening four years. A reasonable factfinder could have formed =
a firm=20
belief that appellant=E2=80=99s failure to take D.R.A. and M.S. =
for medical=20
treatment and to resist going to a clinic with the caseworker =
endangered=20
the physical well-being of D.R.A. and M.S.
<=
/SPAN>Furthermore,=20
a factfinder could have reasonably believed that =
appellant=E2=80=99s angry=20
outbursts, which occurred frequently and apparently without regard =
to her=20
surroundings, endangered the emotional well-being of the children. =
Ahmed=20
witnessed D.R.A. cowering under a sheet as appellant yelled at =
him, and=20
M.S., being in the same room, was a witness to this event. The =
children=20
were also present when appellant created disturbances at the =
family=20
visitation and the health clinic.
<=
/SPAN>Appellant=20
argues that there is no evidence to show that her conduct =
endangered A.W.=20
because A.W. was taken from her at birth. However, a court may =
consider a=20
parent=E2=80=99s conduct both before and after a child=E2=80=99s =
birth as grounds for=20
termination. In re U.P., 105 S.W.3d at 229; see also =
Avery,=20
963 S.W.2d at 552=E2=80=9353 (determining that prior conduct that =
endangered older=20
child and persisted up until birth of second child was basis for=20
termination of parental rights of second child). =
<=
/SPAN>In=20
this case, appellant showed a pattern of medical neglect with her =
first=20
two children as well as a pattern of angry disturbances. A =
factfinder=20
could have reasonably believed that appellant=E2=80=99s conduct =
endangered the=20
physical and emotional well-being of A.W.
<=
/SPAN>We=20
hold that the evidence is legally sufficient to support the trial =
court=E2=80=99s=20
judgments. Furthermore, we find no evidence presented by appellant =
disputing the evidence presented by CPS. Appellant admitted that =
her=20
children=E2=80=99s burns were serious and that she did not attempt =
to get medical=20
treatment for them, but gave no reason for her failure to do so. =
Appellant=20
did not deny her angry outbursts, although she minimized some of =
them.=20
Rather, she denied that she had an anger =E2=80=9Cproblem=E2=80=9D =
and therefore does not=20
use any anger management techniques. In light of these facts, we =
conclude=20
that the trial court could have reasonably formed a firm belief =
that CPS=E2=80=99s=20
allegations were true.
<=
/SPAN>Accordingly,=20
we overrule appellant=E2=80=99s second issue relating to M.S. and =
A.W. and her=20
first issue relating to D.R.A.
Best =
Interest of=20
the Children
<=
/SPAN>In=20
her fourth issue relating to M.S. and A.W. and her third issue =
relating to=20
D.R.A., appellant contends that there was no evidence or, in the=20
alternative, insufficient evidence to support the finding that it =
was in=20
the children=E2=80=99s best interest to terminate the parent-child =
relationship.=20
Appellant argues that, in the case of A.W., there is no evidence =
that=20
appellant harmed her or that she had drugs in her system or showed =
signs=20
of prenatal neglect when born. Appellant further argues that there =
is no=20
evidence that M.S. suffered lasting effects from her burn. With =
regard to=20
D.R.A., appellant seems to argue that her efforts to complete her =
family=20
service plan controvert the caseworker=E2=80=99s testimony. =
Appellant appears to=20
suggest that the children could simply stay in foster care until =
appellant=20
could attempt reunification or that CPS could be made the =
children=E2=80=99s=20
permanent managing conservator without terminating =
appellant=E2=80=99s parental=20
rights by stating that there is no evidence that such a course of =
action=20
would harm the children emotionally or physically. In our view,=20
appellant=E2=80=99s argument fails to recognize the =
children=E2=80=99s need for stability=20
and permanency.
<=
/SPAN>Courts=20
have generally considered nine non-exclusive factors set out in =
Holley=20
v. Adams in determining the best interest of the child. 544 =
S.W.2d 367=20
(Tex. 1976). Those factors are (1) the desires of the child; (2) =
the=20
emotional and physical needs of the child now and in the future; =
(3) the=20
emotional and physical danger to the child now and in the future; =
(4) the=20
parental abilities of the individuals seeking custody; (5) the =
programs=20
available to assist these individuals to promote the best interest =
of the=20
child; (6) the plans for the child by these individuals or by the =
agency=20
seeking custody; (7) the stability of the home or proposed =
placement; (8)=20
the acts or omissions of the parent, which may indicate that the =
existing=20
parent-child relationship is not a proper one; and (9) any excuse =
for the=20
acts or omissions of the parent. Id. at 372. We will =
consider these=20
factors as they relate to this case.
<=
/SPAN>1. Desires=
=20
of the children. These children are very young. M.S. was =
removed from=20
her mother=E2=80=99s custody when she was 17 months old and was =
not yet three=20
years old at the time of trial. A.W. was removed at birth and was =
15=20
months old at the time of trial. D.R.A. was first removed from =
appellant=20
when he was about one year old and was returned to her possession =
for=20
about one month when he was five years old, and the caseworker =
testified=20
that D.R.A. and appellant were not bonded. The record is silent =
regarding=20
the children=E2=80=99s desires.
<=
/SPAN>2. Emotion=
al=20
and physical needs of the children now and in the future. A.W. =
is=20
developmentally delayed both physically and intellectually. At the =
time of=20
trial, she was receiving therapy four days a week. Appellant got =
angry=20
with her caseworker because the caseworker tried to discuss =
A.W.=E2=80=99s special=20
needs on each visit. Appellant admitted at trial that she did not =
know=20
A.W.=E2=80=99s needs, but thought she would be able to take A.W. =
to therapy as=20
required, even though she had problems getting to appointments on =
time.=20
<=
/SPAN>D.R.A.=20
and M.S. have no special needs. However, appellant has =
demonstrated that=20
she has difficulty fulfilling the ordinary needs of a very young =
child by=20
her reluctance to and revulsion at changing M.S.=E2=80=99s diaper =
during a=20
visitation. Appellant also demonstrated that she did not =
understand the=20
needs of a young child in her harsh criticism of D.R.A. Although =
appellant=20
improved in her communications with D.R.A. after taking parenting =
classes,=20
she still was unable to bond with him. In addition, appellant =
demonstrated=20
an inability to set priorities in tending to her =
children=E2=80=99s needs by=20
spending $500 on Christmas gifts, but saying that she could not =
pay $50=20
per month in child support. Finally, the caseworker testified that =
the=20
children all needed stability, and, over the 17 months that CPS =
was=20
working with her, appellant did not show stability either in her =
living=20
arrangements or in her employment.
<=
/SPAN>3. Emotion=
al=20
and physical danger to the children now and in the future. =
Appellant=E2=80=99s=20
anger issues, coupled with her denial that she has a problem with =
anger,=20
could lead to the conclusion that, now and in the future, her =
anger=20
presents at least an emotional, and probably a physical, danger to =
the=20
children. This danger is further exacerbated by =
appellant=E2=80=99s lack of candor=20
during her drug assessment and her continuing use of illegal =
drugs.=20
Although she testified that she would not continue using drugs, =
her=20
positive test for cocaine and marijuana only five days before =
trial=20
indicates that she is likely to continue her drug use whenever she =
wants=20
to =E2=80=9Chave fun.=E2=80=9D
<=
/SPAN>4. Parenta=
l=20
abilities of the individuals seeking custody. =
Appellant=E2=80=99s parenting=20
experience consisted of approximately one year with D.R.A. before =
he was=20
removed from her for medical neglect, approximately one additional =
month=20
with D.R.A. four years later, and 17 months with M.S. Appellant =
was=20
observed yelling at D.R.A. on one occasion and severely =
criticizing him at=20
visitation for his =E2=80=9Cugly hair=E2=80=9D and his personal =
hygiene. Appellant tried=20
to avoid changing M.S.=E2=80=99s diaper, saying it was =
=E2=80=9Cgross.=E2=80=9D Appellant brought=20
friends with her to visitation, and the friends interacted with =
the=20
children while appellant sat on the sofa and waited for the =
children to=20
come to her. Although some improvement was noted after appellant =
completed=20
her parenting classes, there was no significant change in her =
interaction=20
with the children at visitation.
<=
/SPAN>5. Program=
s=20
available to help promote the best interest of the children. =
Appellant=20
recognized that she would need day care for the children while she =
was at=20
work and arranged for subsidized day care at a facility that =
provided=20
transportation and was open 24 hours a day. Appellant testified =
that she=20
would not have a problem taking A.W. to therapy four times a week, =
although she admitted that she had trouble getting places on time. =
The=20
record shows that, not only is she late, she often does not show =
up at=20
all, e.g., the first day of trial, visits with her =
children, and=20
two weeks at work.
<=
/SPAN>Appellant=20
did not seem to recognize that she needed programs to help with =
her=20
parenting skills. She did not appear to benefit much from the =
anger=20
management program and denied that she had an anger problem. She =
seemed to=20
gain only slight benefit from the parenting classes, criticizing =
D.R.A.=20
less but not increasing her interaction with the children. After=20
completing her drug program, she had an adulterated urinalysis and =
a=20
positive urinalysis. She stopped attending a support group at =
Houston Area=20
Women=E2=80=99s Center because she felt that she did not need it. =
In general,=20
appellant showed a disregard for the measures she needed to take =
to regain=20
custody of her children.
<=
/SPAN>6. Plans=20
for the children by those seeking custody. Appellant had plans =
to move=20
into subsidized housing that would cost $48 a month, enroll the =
children=20
in subsidized day care, get Medicaid for the children, get her =
mother to=20
help with transportation, and continue to work at Wendy=E2=80=99s =
for a time so=20
she could pay her bills. However, appellant did not say how she =
planned to=20
pay the electricity bill, which would not be subsidized and had =
been a=20
problem for her in the past. And although her mother could help =
with=20
transportation, appellant said she would not let her mother stay =
alone=20
with the children because of the mother=E2=80=99s abusive behavior =
during=20
appellant=E2=80=99s childhood.
<=
/SPAN>On=20
the other hand, CPS planned to place the children for adoption in =
homes=20
that could provide for their needs. M.S. and D.R.A were already =
placed=20
with a foster family that wanted to adopt them, and Moore =
testified that=20
they were doing well in the foster home and were bonding with the =
parents.=20
A.W. was with a foster family that was satisfying her needs and =
taking her=20
to her scheduled therapy sessions. CPS had placed A.W. on a list =
for=20
adoption. Viewing all the evidence, the court could have =
reasonably=20
believed that CPS=E2=80=99s plans for the children would be more =
likely to result=20
in a permanent and stable home.
<=
/SPAN>7. Stabili=
ty=20
of the home or proposed placement. Since 2003, appellant had =
not lived=20
in one place for more than three or four months. She sometimes had =
her own=20
apartment, but more often she moved in with friends or relatives. =
On at=20
least one occasion, she was staying in a motel. This situation =
persisted=20
up until the time of the first trial. Although appellant had moved =
into=20
her own subsidized apartment a few days before her second trial =
and=20
testified that things would be different because she had an =
apartment and=20
a job, a factfinder could have reasonably believed that four or =
five days=20
in an apartment was insufficient to demonstrate stability.=20
<=
/SPAN>8. Acts=20
or omissions of the parent that indicate an improper =
relationship.=20
Appellant either did not know or would not tell how either of her =
two=20
older children got burned. She then did not take either of them =
for=20
medical treatment for their burns. Appellant showed revulsion at =
having to=20
change a wet diaper. She did not interact much with her children =
at=20
visitation, but left that to friends who came with her. At the =
time the=20
two older children were taken by CPS, she had no home and was =
staying in a=20
motel. She smoked marijuana about two weeks before her first =
termination=20
trial, knowing that she was jeopardizing her chance of getting =
custody of=20
the children. She also tested positive for cocaine. She did not =
make a=20
serious attempt to get a permanent place to live until shortly =
before her=20
first trial, but, for most of the 17 months before the trial, =
lived with=20
various friends and relatives and did not secure a permanent place =
to live=20
until after her first trial. She was unemployed for about 10 =
months after=20
CPS took possession of the children and never got a full-time job. =
<=
/SPAN>9. Any=20
excuse for the acts or omissions of the parent. Of the acts =
and=20
omissions above, appellant offered excuses for only two. She said =
that she=20
did not take M.S. to the doctor for M.S.=E2=80=99s burns because =
she was afraid=20
that CPS would remove M.S. from her custody. She also said that =
she did=20
not use cocaine and that someone at the party must have =
=E2=80=9Claced=E2=80=9D something.=20
At trial, appellant admitted that, at first, she was not trying to =
comply=20
with CPS=E2=80=99s plan of service, but said that she now wants =
her children back=20
and =E2=80=9CI know that I will be able to do what I can do when I =
get my kids.=E2=80=9D=20
<=
/SPAN>Except=20
for the desires of the children, which is unknown, each of the =
above=20
factors weighs in favor of CPS. A factfinder could have reasonably =
believed that the termination of appellant=E2=80=99s parental =
rights was in the=20
best interest of the children.
<=
/SPAN>The=20
only evidence offered by appellant to dispute such a conclusion =
was=20
appellant=E2=80=99s assurance that she could take A.W. to her =
scheduled therapy,=20
that she had made arrangements for day care and a suitable place =
to live,=20
that she would have help with transportation, and that she now =
wanted very=20
much to have her children back. We hold that this evidence is not =
so=20
significant that a factfinder could not reasonably have formed a =
firm=20
conviction that termination was in the best interest of the =
children.=20
<=
/SPAN>We=20
overrule appellant=E2=80=99s fourth issue relating to M.S. and =
A.W. and her third=20
issue relating to D.R.A.
CONCLUSION
<=
/SPAN>Having=20
concluded that there is legally and factually sufficient evidence =
that=20
appellant=E2=80=99s conduct endangered the well-being of D.R.A., =
M.S., and A.W.=20
and that termination of appellant=E2=80=99s parental rights is in =
the best=20
interest of the children, we need not consider her first, third, =
and fifth=20
issues relating to M.S. and A.W. or her second and fourth issues =
relating=20
to D.R.A., in which she challenges the legal and factual =
sufficiency of=20
the evidence to support the trial court=E2=80=99s findings or =
implied findings=20
with respect to other subsections of section 161.001(1).=20
<=
/SPAN>We=20
affirm the judgments.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Sam=20
Nuchia
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Keyes, and=20
Hanks. |