*1
the same result here. See
that it dictates
Constr.,
In the Interest of A.B. and
Gilbert Tex. H.B., Children. policy each insurance must (stating specific according to its own interpreted No. 02-11-00209-CV. coverages); see also Pio- provisions and Co., Royal Indem. neer Alkali Co. v. Texas, Chlor Appeals Court of 920, 936 (Tex.App.-Houston 879 S.W.2d Fort Worth. pet.) (finding no case [14th Dist.] Aug. company unpersua-
cited the insurance insuring it did not discuss the sive because policy provide sufficient
language case if the cited
facts to determine
sufficiently appeal to the case on similar company’s argu- insurance
support
ment).
Second, Molpus conclude the court we
incorrectly single to a section gave priority considering policy instead analysis. see policy
entire its But Pio- (con- Alkali, at 936
neer Chlor 879 S.W.2d policy ambiguous
cluding insurance looking “policy entirety
after in its priority any isolating giving
without section”). sentence, or Final- phrase,
one
ly, concluding that the condition at issue exclusion, Molpus not an court did limiting consider the inherent effect of
its we it language as have described above.
Accordingly, decline to Molpus. we follow
Conclusion
Having Gastar’s fourth sustained issue appeal, the trial we reverse court’s
summary partial judgment, and we render
summary judgment Endorsement
precludes denying the insurers from cover-
age for the Seven Gastar Suits based on C the Pre-Policy
Condition and Suits. We
remand case the trial court for proceedings
further in accordance with opinion.
this *2 Gladstone, Worth, for A.
Richard Fort Appellant. Shannon, Jr., At-
Joe Criminal District *3 Ponder, torney, W. Assistant Christopher Attorney County, for Fort District Tarrant Worth, Appellee. for Kaitcer, Windsor, Loe, Mike Jeffrey N. Rosenfield, Hibbs, Warren, Kaitcer, Wind- sor, P.C., Wolffarth, & Forth Lawrence Worth, for Intervenors.
OPINION ON APPELLEES’ MOTION REHEARING AND MOTION FOR FOR EN BANC RECONSIDERA- TION1 PER CURIAM.
I. Introduction Appellees Department Family and (DFPS) and Interve- Protective Services (the nors foster filed parents) children’s rehearing en banc and for motions opinion Sep- of our issued reconsideration motions, 13, grant tember 2012. We opinion judgment withdraw our 2012, September and substitute following. time has
This
the second
that Father
parental
termination
appealed the
of his
A.B.,
H.B.
No.
rights to A.B. and
See In re
(Tex.
02-09-00215-CV,
As in our we detailed first placed family mem- H.B. then fifteen- September bers in after H.B., fifteen weighing only month-old hospital admitted to the pounds, id. at diagnosed with failure thrive. See *4-5. that H.B. Upon DFPS’s conclusion Tex.R.App. 49.7. See P. neglected, 161.001(1)(D), (2) § had been the children physically (E), Ann. Fam.Code (West voluntary family placement in a remained Supp.2012). Father then raised five nine points about months before DFPS- re- on appeal, and initially we concluded turned them Father’s care June that the evidence supporting endanger- *4, 7, 8, 2008, July 2008. See id. 9. On ment findings again insufficient. However, the children were removed upon review of DFPS’s (VOA) after a Volunteers of America case Intervenors’ motions for en banc reconsid- eration, worker discovered that had bruises A.B. we revise this conclusion and af- on his face left ear. See id. at *11. firm the parental termination of Father’s *4 (CPS) placed Child Protective Services the rights. family, awith foster and DFPS II. Rights Termination of Parental petition
filed its to terminate Father’s and parental rights Mother’s next day. the In points, his first three argues See id. at *13. that the evidence is legally factually support insufficient endangerment to the 2009, trial,
In June after a bench the or best findings. interest In See his trial id. by court found clear and convincing point, fourth Father complains that the knowingly placed evidence that Father had trial court allowing erred the children’s allowed knowingly the children to re- parents intervene, foster and in his fifth main in conditions or surroundings that point, he complains that the trial court endangered physical their or emotion- erred by preventing impeachment of a well-being, al engaged he had in con- DFPS witness. knowingly placed duct or the children with persons engaged who had in conduct that Sufficiency A. endangered the physical children’s or emo- well-being, tional and that termination of 1. Standards of Review parental rights Father’s in the chil- case, In a termination the State seeks dren’s best interest.2 See id. at *32. just parental to limit but rights appealed, challenging legal the erase them permanently divest —to sufficiency and factual sup- parent the evidence of all legal privi child rights, porting duties, the trial findings. leges, court’s See powers normally id. existing 2010, July them, at *1. In we overruled between except right Father’s the child’s 161.206(b) legal sufficiency (West challenges 2008); § inherit. sustained Id. Smith, (Tex. challenge sufficiency 18, the factual of Holick v. 685 20 S.W.2d 1985). supporting endangerment evidence strictly We scrutinize termination findings. We held the legally proceedings strictly evidence construe involun support sufficient tary the trial court’s best termination statutes in favor of the finding, E.R., interest parent. and we reversed the trial In re 385 S.W.3d 563 (Tex.2012) Holick, court’s judgment and -remanded the (citing case 685 S.W.2d at *36, 40-42, for a new trial. See id. at 20). trial, jury
After a parental sup- Termination decisions must be rights were terminated ported by for a second time. and convincing clear evidence. jury 161.001, made the endangerment §§ same Tex. Fam.Code Ann. 161.206(a). and best interest findings process the trial Due demands this court had made the first trial. See heightened Tex. parental standard because “[a] ed, rights parental Mother’s also appeal. terminat- but she did not
592 to termination evidence favorable consider encumbers rights proceeding termination could, we if a reasonable factfinder property than precious any value ‘far more ” contrary unless a rea disregard evidence E.R., (quoting 555 385 S.W.3d right.’ Id. could not. sonable factfinder 747-48, Kramer, 455 U.S. Santosky v. 1388, 1891-92, 599 71 L.Ed.2d 102 S.Ct. is- credibility witness weigh cannot We J.F.C., (1982)); S.W.3d re In appearance depend sues (Tex.2002); 243 S.W.3d see In re witnesses, for that is demeanor of (Tex.2007) standards (contrasting 573, 574. Id. at province. factfinder’s Ev conservatorship). for termination and credibility appear issues And even when if it “will convincing clear idence is record, to the fact- appellate we defer fact in the mind of trier of produce as are long determinations as finder’s the truth firm or conviction belief Id. at 573. not unreasonable. sought allegations established.” factual reviewing In evidence (West § Ann. 101.007 Tex. Fam.Code sufficiency, give we due deference to 2008). findings supplant and do factfinder’s *5 H.R.M., parent-
In to terminate the In re the verdict with our own. proceedings (Tex.2006). 105, relationship brought under section 108 We de- child 209 S.W.3d record, code, whether, entire family petitioner of the termine 161.001 reasonably under form a firm ground one listed factfinder could must establish (1) parent also that the violat- of the and must conviction or belief subsection statute (D) (E) of section in inter ed subsection or termination is the best prove that 161.001(1) J.L., that the termination of 161.001; § re child. Id. In est of the (Tex.2005). be in the 79, relationship would parent-child ele 84 Both 163 S.W.3d established; of the child. Tex. Fam.Code best interest termination must be ments 161.001(1)(D),(E), (2); C.H., § In Ann. re may solely on inter not be based the best (Tex.2002). If, 17, in light of 89 S.W.3d 28 by the trier est of the child determined record, disputed evidence the entire Human Servs. v. Dep’t of fact. Tex. factfinder could not have reasonable (Tex.1987); In 533 Boyd, 727 S.W.2d finding signif- is credited in favor of the so D.T., (Tex.App.-Fort re 34 S.W.3d reasonably icant that a could denied) factfinder (op. reh’g). pet. Worth in have formed a belief or conviction firm evaluating legal In suf the evidence for then the evidence finding, the truth of its cases, we ficiency parental in termination H.R.M., 209 factually insufficient. is the evidence is such determine whether at 108. S.W.3d form a reasonably factfinder could 2. The “Law the Case” Doctrine chal firm or conviction that belief Apply Here Does Not proven. lenged ground termination was (Tex. J.P.B., In re 180 S.W.3d Relying on the “law of the case” doc- 2005). trine, We review all evidence argues that the evidence light finding to the most favorable factually insufficient to termi- legally and judgment. any disputed Id. rights We resolve parental nate his under subsections (D) (E). if finding facts in a reasonable Specifically, favor or Father identifies could done Id. We allegations by factfinder so. made DFPS and ar- four all that a reasonable disregard holdings allegations evidence on these gues our Id. We the outcome of appeal factfinder could have disbelieved. in his first control presented if it is undisputed appeal evidence even this because the evidence consider - is, substantially the Id. we in the second trial contrary finding. That presented same as the evidence at the first was admitted into the intensive care unit First, argues trial. he that evidence that Cook Children’s Hospital. Her seizure n was attributed to slapped July hyponatremia, A.B. 2008 is insufficient which is (E) inadequate sodium in under subsection because it was a sin- the blood and can Second, caused diluted formula gle argues incident. or nutrition- liquids. less During her nine- to ten-day prove DFPS failed to that he knew that hospital stay, hospital records reflected failing H.B. was to thrive two that H.B. had “significant developmental diagnosis months before her in September delays” and that she was not crawling, (D). required 2008 as under subsection walking, sitting up. An earlier medical Third, argues that there is no evi- report 3, 2007, examination May re- dence that the children witnessed or were flected concern about H.B.’s “head and by witnessing harmed the alleged violence cranium” development. between Father and Mother. Finally, Fa- argues ther that the evidence of his unsan- regard With to H.B.’s failure to thrive itary living conditions is insufficient diagnosis, Father testified that he and prove endangered that he the children uri- Mother had agreed that she would tend to n (D) (E). der either subsection the children’s doctor visits when moved to Texas from Missouri3 and that Although the “law of the case” doc he did not any attend of the children’s generally trine applies ap to successive doctor visits in Texas. Father case, peals in the same only applies it stay home with one child law, questions of not questions of fact. *6 while Mother took the other child to the B.G.D., 131, See In re 351 S.W.3d 141 doctor. Despite stating that he attended 2011, (Tex.App.-Fort pet.) (citing Worth no A.B.’s doctor visits with Mother in Mis- 628, Wakefield, Hudson v. 711 S.W.2d 630 souri, Father offered explanation no as to (Tex.1986)). Further, “the decision to re why he did not continue to do' so once the previous visit a holding is left to the dis family moved to Texas. despite And Fa- cretion of the court under the particular ther’s failure to involve himself in the chil- circumstances of each case.” (citing Id. care, dren’s health Father admitted that Jackson, City Houston v. 192 S.W.3d of he responsible was for the children’s well- 764, (Tex.2006)). 769 Because the resolu being becaüse he parent.4 was their tion of first three turns on issues Father did not who the know children’s fact, questions of the doctrine does not was, Texas pediatrician, and the record here, apply and we analyze will the suffi contains no evidence that Father inquired ciency presented of the evidence into the results of the children’s doctor jury at the trial. second visits; rather, Father claimed that Mother 3. Evidence did not any share with him information she old, At fifteen months H.B. diag- was received from the children’s doctors and nosed with failure to thrive after she suf- that he was “technically ... not responsi- fered a seizure in 2007 and ble” September for his problems children’s health if he 3. A.B. was born 151.001(a)(2) while Father and § Mother child.” Tex. Fam.Code Ann. Shortly lived in Missouri. after (West 2008). A.B. was parent duty A also has "the born, Texas, family moved to where H.B. child, support including providing was born. food, shelter, clothing, child with medical and care, dental and education.” Id. Indeed, parent "duty of a child has a (West 151.001(a)(3) 2008). § care, control, protection [and] ... of the problems by feeding to wean her off bottle her
was not informed Porter food that he ate. Dr. Peter investigator Jennifer doctor. CPS same Lazarus, pediatrician informed Father the Cook testified that when she Children’s 2007, 2007, extremely September 10, H.B. who saw H.B. testified that was October he Moth- that Mother had Father developmentally delayed, reported blamed er, doctor watched the children for her that she handled H.B.’s sometimes saying weekends, g[ot] “he them some visits. consistently].” However, but not Lamor- development during H.B.’s Regarding Cornelius, case- ra who was Father’s CPS 2007, Father he knew spring said July from October through worker “thought she was that she was small but 2008, told her that he testified Father normal,” he testified she basis, daily watched the children on a eating “doing everything well Porter her on Father told However, Fa- doing.” to be supposed October that he watched chil- know ther later testified that did not five days p.m. dren a week from 3:00 until developmental goals what and milestones Barker, midnight. employ- Janice VOA for H.B. the time appropriate taught parenting ee who Father and home- that he her seizure. Father also testified making from January skills to March as a had been small but malnourished Father also testified that told child that he had suffered seizures day every cared the children a child. during Mother. separation also claimed he was underfeeding during responsible growth H.B. evidence showed that H.B.’s leading up problems months to her seizure well before two started diagnosis and her failure thrive because Mother Dr. Lazarus testified separated. infrequently. “severely saw children that H.B. malnourished” 29, 2007, separated July and September and Mother that her condition Mother was of a that develops period took her when kind over a *7 family’s Wright, apartment. pedia she moved from the of months. Nurse Donna conflicting The with practitioner record contains evidence tric nurse Cook Chil cared frequency Hospital, with which Father dren’s testified that H.B. went separation twenty-fifth weight for the children between his from in percentile 25, 2006, in sei- July from Mother 2007 and H.B.’s at birth5 on June to her at peak 29, September Although weight zure on 2007. the fiftieth on Febru percentile n 20, then ary weight testified that his visits with' 2007. Her fell to the inconsistent, 2007, 9, percentile children were admit- third on then April also and 3, “a growth May ted that he saw the children few times to below the chart on weight week.” her actually losing He further testified that he from 2007— anything respect April not see unusual with and exam.6 Mother Father were health, living together H.B.’s ate table at point. normal this There is also “[s]he know, scraps, eating pizza, you was evidence in the that H.B. gained record 3, trying scraps,” approximately pound May whatever and was one from twenty-fifth percentile healthy designed 5. The and is a trol was to determine whether a weight. physically developing child is at a normal rate. Wright explained question 6. that the chart published by the Centers Disease Con-
2007, 29, September brought 2007. Father and were to Father’s apartment separated July visit, Mother day next for a four-hour but Father obtained no food for had them. When also ev- The record contains uncontested Cornelius offered to take Father H.B. emo- physically idence that buy food, store some he declined. Cor- tionally endangered by her malnourished nelius returned to apartment af- Wright state. H.B. testified that suffered ter visit and found the hungry children 2007, September language seizure in dirty being at the park; Father delays endanger physical that could her then asked her feed the children. well-being, gross and emotional and had developmental delays. motor skill Cornelius testified that Father returned hospital further reports record contains the children after hungry the next four- 30, September hospital from H.B.’s 9, 2008, hour visit on April stay “significant that state that H.B. had angry became with her explained when she developmental delays” not crawl- that his failure feed the children con- walking, up. ing, sitting Porter testi- cerned prior because H.B.’s failure extremely developmen- fied that H.B. was diagnosis. thrive Cornelius testified 9, tally delayed October “yell[ed]” that Father “seream[ed]” regard With to H.B.’s head and cranium her when she questioned him about the 3, development May noted in 2007 lack of food that he had for the children. medical examination report, Wright .testi- She said that Father claimed he was hav- degree fied that re- malnutrition ing difficulty obtaining food quired to slow a cranium growth child’s family members with whom the children permanently can physical affect the child’s placed had been stamps food well-being. and emotional Dr. Lazarus having that he was trouble getting food problems stated that brain growth stamps back to transferred him. Father can Wright lead to mental retardation. had food when brought testified further that at the time H.B.’s apartment to his for the next on April visit 2008, July evaluation in H.B. had language and he told Cornelius delays a potentially that “would have en- it gave friend to him. dangering physical effect on or emo- [her] dirty Father returned the children wellbeing” tional because children overnight tired after the next two visits-an delays language to have behavioral “[tend] May visit three-day and a visit problems can understood that *8 in June 2008. that Cornelius noted the inappropriate temper lead to and tantrums children had visible dirt on their bodies ... behaviors.” clothing after both She and visits. also In line with failure H.B.’s to thrive it appear said that did not that Father had malnutrition, based on and Cornelius bathed the children at all three- during the consistently Barker testified that Father in day visit June 2008. had either little or no food in his apart- ment. that although Cornelius testified part took the ser- apartment
Father moved classes of into an in Jan- parenting DFPS, vices offered he showed no uary 2008. Cornelius testified that when 2, 2008, chil- progress exposed she this on and that he had the apartment April visited clean, it was but had dren the appropri- through ag- no to emotional abuse ate in gressive displayed food for children in home. She behavior Further, get advised him some. The children front them: she was con- encouraged to Fa- that she Father to contact returning the children about cerned holiday July local food bank before the 4th neglected previously ther because had feared that he would because she unable to needs and was physical their holiday. to obtain food-over the She able during short visits for them properly care that when she returned to Father’s said concerns, apartment. Despite at his 8, 2008, apartment July again she found on however, placed children were back only apartment. ramen noodles in his She 10, When she on June with Father said that the children ate the food that also said day, visited Father day. brought she children, no for the but Corne- he had food that Fa- he did. She said lius found that The next time that saw the Cornelius appropri- sure the food was ther was not they when were taken to the children was ate; 8, said it was. Cornelius July to A.B.’s hospital on due (discussed below). injuries testified She recalled that when she visited Cornelius lethargic they that the children were until 17, 2008, the children on June Father and hospital were fed at the and that she be- rotten odor the air and there placed that Father lieved had children “[flood, stains, trash,, just kind of old and dangerous in a environment. food,” nothing on the but to eat in the floor Jessica,7 par- the children’s first foster opened When she the bedroom home. ent, the children hoarded testified door, lying she found the children bed. they first arrived food over-ate her, respond did not which They she July at her 2008.8 She re- house unusual, they were le- had seen some called children dirt, thargic, covered visible and wear- television commercials International appeared to ing dirty diapers that (IHOP) House Pancakes dirty been for some time. testi- .Cornelius them there promised take that she left food for the children that fied Saturday they if breakfast on behaved day. promised, As she and her well. husband again Cornelius visited on June When nearby to a IHOP that took 27, 2008, conditions worsened. There arrival, Saturday. they Upon determined floor, was more food on the unclean dishes long, that the wait would be too and she sink, odor, a stronger in the rotten go and her husband decided to another there was edible food in the home in some IHOP “around corner.” She stated dry the form of Cheerios. She stated that that as soon as A.B. sensed that bad, the apartment “smelled smelled rot- leaving eating, hysteri- he became without ten, really dirty[,] it had not smelled “kept crying cal. Jessica testified that he been cleaned.” crying to eat.” begging She stat- body Barker testified that when she visited ed that even tried to force July apartment family through side windows van apartment food she saw in the was a only despite fact that the windows would *9 only package open of ramen noodles. She testified a few She said that inches. any of pseudonyms We use names them to another foster home because move caregivers family protect and members to allegations made that she and her Father had Tex.R.App. children's See P. & identities. 9.8 husband had abused A.B. Jessica testified she cmt. adopting process in the of another child continuing allegations might feared and that after the About seven months were jeopardize adoption. Jessica, placed let decided to CPS she IHOP, 8, 2008, July arrived at the second ment on when at 11:00 a.m. and and “emotionally spent” A.B. that neither he nor the children were in that sweat.” Jessica recalled “drenched awake she He that arrived. stated and that ate his meal and hers as well and, A.B. Barker everyone came once inwas “obviously very by his he was embarrassed room, opened he living the blinds and behavior.” on noticed the bruises A.B.’s face ear. and Barker then asked A.B. hap- what had opened
After the CPS case had been pened, said that and A.B. he fell. Father thrive, of H.B.’s failure to A.B. explained said that he to Barker A.B. enough an suffered serious to re- injury awoke in middle be- night and quire trip hospital. Barker testi- gan “slapping” bed, his ear on saying, his the chil- fied that visited Father and ear, ear, my “[M]y my ear.” 8, 2008, Father said July that A.B. on discovered dren CPS, that A.B. assumed had into injured, “[run] been and who contacted bed, or had jumping the children to Chil- toddler been transported Cook his bed and fell into Hospital. [sic] dren’s record reflects that toddler bed.” time visit on However, at some between Barker’s Barker testified that after A.B. July fallen, and her July visit on said he had asked Father what she. his A.B. suffered linear bruises on left had and .Father happened “was at quiet cheek, a bruise on eyelid, first, his left said, he and then no big [T]t’s deal, Wright bruise on large his left ear. heard say fell. You him he fell.[’]” Shaw, physician Dr. at the Carl testified, Cook Barker “In my opinion also it was room, Hospital testi- emergency Children’s struck, obvious that this child ha[d] been A.B. also fied that had some bruises his only was the person [Father] buttock, chin, right a bruise on his and a apartment I knew had been on his lower left bruise abdomen. children.” Wright and Dr. Shaw also testified n . aide CPS case Val Trammell testified injuries A.B.’s were not of a kind that a given that Father had her two different accidentally. Wright child sustain how A.B. Ac- injured. accounts of injury that the to A.B.’s ear was concluded Trammell, cording to Father showed her pinch more consistent with a “blow” to he had taken photograph that of the secu- his ear the linear bruises on rity gate apartment complex appeared face caused A.B.’s have been A.B. tripped told her that over the open-hand an Dr. slap. Shaw testified occasion, gate. On another Father stated injuries to A.B.’s face and ear tripped over a A.B. had stroller. likely by physical caused abuse and stated, “I have a set of never seen such Both of the children’s foster families aceident[,] from an I
injuries don’t nightmares testified about A.B.’s to.” expect Although testified that injured that Father ear. A.B.’s claims A.B., pleaded guilty he did hit to a said, that A.B. “[M]y Jessica testified dad- charge injury to a child.9 dy rip my ear tried to off.” She said cry gave nightmares three of A.B. had which he would different accounts out, “[N]o, Gene, injury. daddy, the cause A.B.’s no.” chil- apart- parent, that Janice Barker arrived at his foster dren’s second also testified completed successfully guilty get 9. Father received and ed he would be so that able to out adjudication supervision community deferred jail plan. on the CPS and work service *10 charge. plead- He on the testified that he Further, when the in which he Trammell said that nightmares that A.B. suffered confrontations, night in the middle children witnessed these would awaken over his hand “cupping “try[ “no” and move to make yelling they away ] would also saying, Gene ear away [’]owee.[’]” his left from Fa- get invisible” to themselves arrived, he when A.B. first that recalled stated further that the children ther. She pull tried to “daddy [his] told Gene leave their foster initially did want to ear off.” visit home to Father and in the away getting and run to avoid cry above, set out to the facts
In addition car. fre- Father had record reflects that workers with CPS confrontations quent arguments hap- claimed Father in front of the children. and others “once and never in pened only or twice” Knox, be- investigator who Bryan CPS of the children. Father testified that front de- working with Father when CPS gan children, play he would when he visited relationship with termined them, them, change feed their dia- contentious, tes- had become too Cornelius that the and read them. He said pers, an- “[a]ngry, angry, Father tified that on one occasion happy children children transr when CPS had the gry” up [him] ran [H.B.] “[A.B.] July hospital to the on ported said, leg [’D]addy, dad- grabbed [his] A.B.’s He testified injuries. because of all about it.” Father dy,[’] happy and was that, hospital, while at the further testified that attended all of the also he said, dick,” my police to a officer “[S]uck visits. scheduled Father admitted in front of children. Burdick, a clinical social Constance “[h]ighly upset” he was because CPS Charities, with Catholic testified worker he investigating again him and that that Father started sessions with maturely, he was “not not act but that 6, 2009, January anger management He claimed that he totally belligerent.” counseling. She classes individual upset parent.” as a acting “normal recognize that Father stated refused its changed testified that VOA Barker any anger that he had issues and that locking its doors procedures started improving discussion of his communication at the response to Father’s outburst VOA only him and make “agitate skills served early 2008. She stated further offices angry.” him Burdick stated further that might feared that she that Father anger displayed appropriate Father “never if harmed himself or the children he ability change management skills or the inju- report that she might realized A.B.’s his behavior.” ries CPS. although also testified transported children from Trammell “agitated occasionally,” he thinks that gets home for Fa- their foster to CPS offices admitted, however, He is normal. then She visits witnessed- the visits. ther’s inappropriately that he behaved angry an “[was] workers. He admitted that he CPS also anger man” who a lot of young displayed called one CPS caseworker a “bitch” and in front of the toward the CPS workers apartment came another who to his “virtually every visit” from Oc- said, “whore,” and he admitted to June She also testified tober 2008 dick,” my officer at occasionally police workers call “[S]uck that CPS had to However, July security guard hospital Father so that redirect neces- interact that he felt his behavior was he would with the children. stated
599 denied). willing 2004, DFPS was not Worth sary pet. because The rele listen to him otherwise. inquiry vant is whether evidence exists the endangerment of the children’s “low concluded that Father was
Burdick
physical or emotional well-being was the
control,”
functioning
insight
impulse
conduct,
direct result of
including
Father’s
endanger
physi-
which could
the children’s
acts, omissions, or failures to
In
well-being
cal or emotional
act.
re
S.W,3d
M.C.T.,
struggle
161,
an ill
or a
cope
with
child
250
(Tex.App.
169
developmental problems.
child
with
2008,
pet.);
Fort Worth
no
see
Fam.
Tex.
that both children
de-
record reflects
are
161.001(1)(E).
§
Code Ann.
Termination
Dr.
Ed-
velopmentally delayed.10
Parnell
(E)
under subsection
must be based on
Ryan,
ward
psychologist
licensed
omission;
more than a
act
single
or
professional
performed
counselor who
two
requires
statute
that Father
in a
engage
psychological
diagnos-
evaluations
one
voluntary, deliberate, and conscious course
Father,
tic
also diagnosed
consultation
M.C.T.,
169;
of conduct.
250
at
S.W.3d
insight
lack
Father with
of
stated
161.001(1)(E).
§
see Tex. Fam.Code Ann.
consistently believed that
did
Father
Ryan
to change.
diag-
not need
Dr.
also
however,
It
necessary,
is not
nosed
bi-polar disorder
Father’s
be directed at the chil
conduct
January
noted in his
2011
evaluation
dren
the children actually suffer
present
danger
injury,
specific
and the
danger to the chil
children.
may
well-being
dren’s
be inferred from
Endangerment
4.
under
Section
standing
misconduct
alone.
161.001(1)(E)
533; M.C.T.,
Boyd,
S.W.3d
denied).
checkup,
her
checkup and
nine-month
she
2011, pet.
pounds.
Id. Three weeks
weighed fifteen
mo-
out in their
point
The Intervenors
removal,
weighed seventeen
after her
she
two
en
reconsideration
tion for
banc
check-
eighteen-month
and
her
pounds,
13,
opin-
2012
September
weeks before our
twenty-five
weighed
pounds.
she
Id.
up,
case,
court upheld
in this
this
ion issued
In re
parental rights in
termination of
the
the
termination
upheld
We
trial court’s
E.P.C.,
(Tex.App.-Fort
381
670
S.W.3d
parental rights based on
of the father’s
very
facts
pet.),
no
similar
Worth
(E),
endangerment under subsection
be
making
its
to
the
considered
jury
those
cause,
caregivers,
primary
as one of her
findings in this
endangerment
case.
have
her failure
the father should
noticed
684;
In
Id. at
see also
re
to thrive.
E.P.C.,
one-
parents left
ten and
In
the
T.T.F.,
461, 484 (Tex.App.-Fort
331 S.W.3d
an apartment.
child alone in
half month old
(discussing
no
child’s
pet.)
Worth
man
her
maintenance
found
Id. at 674. A
holding
diagnosis
failure
thrive
and
suf
to
manager,
apartment
the
and contacted
endangerment
supported
ficient evidence
police.
who called the child’s father
the
(E)).
finding
Specifical
under subsection
DFPS,
contacted
police
The
Id.
E.P.C.,
ly, in
we stated
the child had
concerned
investigator
DFPS
became
been
to a course of conduct while
exposed
age.
for
baby’s
small size
her
about
living
involved the
father
no
at 674-75.
child had
bruises
Id.
failure
her with
nutri
provide
proper
but
visi-
battering,
her bones were
visible
E.P.C.,
tion.
sure violence even counseling Father testified that sessions. may not be at the violence directed the individual counseling he discontinued child; and sessions because the counselor “was basi- cally taking side.” CPS’s (F) understanding an child’s capabilities; needs Barker, taught who Father’s in-home (11) classes, although parenting testified adequate support an social whether test, passed parenting he Father exhib- consisting of an fam-
system extended inability an to maintain a suitable ited to the child. ily friends is available home for the children. She testified that R.R., 263.307(b); § at 116. Id. S.W.3d living quickly Father’s conditions deterio- Other, the trier nonexclusive factors that January rated from 2008 to March 2008 in may in a use of fact termination case and that was concerned about Father’s child determining the best interest of the ability problems the after correct the needs physical include emotional and in March classes ended 2008. Cornelius future; the child and in the of now took although also testified that danger to the child physical emotional and part classes as of the sendees parenting future; and in the abili- parental now CPS, progress. offered he showed no custody; the seeking ties of the individuals up anger testified she set Cornelius stability place- or proposed the home management classes June ment; any excuse for the acts or after return CPS had decided to Adams, parent. Holley omissions v. completed to him children (Tex.1976) (cita- 367, 544 S.W.2d 371-72 classes. omitted). These not ex- tions factors are haustive; inap- Burdick that Father came to may some listed factors classes, C.H., anger management her for start- plicable some cases. 89 S.W.3d 6, Furthermore, undisputed ing January 27. evidence of 2009. She said that manage- just may par- anger one factor be sufficient Father attended all of case ter- received certificate support finding ticular ment classes and completion displayed mination is in the child. that he “never the best interest of appropriate anger management persisted skills through ther’s home February change ability his behavior.” Bur- dick said that “was intrusive 10, 2007, Porter testified that on October ... group demanded time to [sessions and] apartment Father’s strong had a odor of ” speak .... Burdick stated further urine, animal feces and animal stains and “from the very group Father’s focus first floor, animal excrement- were stating was to write a get me to letter ripped up, bugs walls were were visi- he did an anger not have issue and home, ble in the in the including refriger- group.” need attend the ator and the freezer. She testified that the apartment dangerous could be a envi- Burdick testified that she also conducted for young ronment who crawl on counseling individual sessions with Father put floor and things in their mouths. February April Cornelius also testified that when she visit- requested She stated that Father a new ed apartment in October therapist supervisors from her *15 she fleas biting felt her and legs she no- thought that “did not she like him” and odor, strong ticed a stains on the carpet, was “out him.” get When he not kitchen, roaches in the and black water receive therapist, a new he discontinued dirty and dishes in the dishwasher. the individual sessions. Burdick also re- Barker testified that when she visited although called that Father a had taken 2008, January Father in he had moved to a project, domestic abuse assessment and apartment, new which was clean. Howev- a accepted was into batterer’s intervention er, living Father’s conditions deteriorated program, physi- Father denied that he had January from 2008 to March cally abused Mother.
given speed with living which Father’s deteriorated, conditions expressed Barker Inability b. Father’s to Care concern that would not be able to His Children appropriately maintain if his home the chil- The reflects record that the children dren returned. were developmental exhibited delays, especially Cornelius testified that Father told her A.B., “special Additionally, a needs” child. that, being apart- was evicted from his the evidence discussed above casts doubt ment apart- moved into new ability on chil- Father’s understand his May ment at end of 2008. She re- dren’s provide needs and them called-that she visited Father and minimally adequate healthcare nutri- June there awas tion. stains, trash, rotten in odor the air and “[flood, food,” just kind of on the old Inability c. Father’s to Provide floor. a Safe Home Additionally, Perez, Melissa Fa- Reagan Further, the record reflects that officer, community supervision ther’s testi- provide physical unable to a safe home July fied from October that 2009 to Cornelius, Testimony environment. from apartment “generally clut- Porter, and Barker ina- showed Father’s unclean,” “very tered” and with fast food bility living to maintain safe in conditions out. wrappers containers left Perez apartments three different from October thought apartment that Father’s was not July 2007 to re- place record also an appropriate for children to live living flects that unsafe in Fa- “primarily very conditions because there [was] attending anger management also while he was the litter box.” She strong odor “very heavy goal that she detected and that the sessions testified classes dirty litter box to be a appeared odor ef- Father to “communicate to teach standing body while ... human odor” manage appropriately, and fectively, stress as he apartment talked of Father’s outside accomplish goals negotiations [use] doorway when visit- her from the Father ended life.” She testified that February apartment ed be- relationship eight sessions their after Coaxum, manager Sheryl assistant stating write letters cause she refused to testified that Apartments, Hill Cherry injure child and did he did September lease violations Father had individual anger management need unsanitary living con- 2010 for and October (cid:127) counseling. pest reported had been ditions also about Father’s Burdick testified that Fa- company. control She Fa- that she and paranoia. She testified control treat- requested pest ther had weekly his fear ther discussions about 28, 2010, September ment DFPS, courts, attorneys, Fa- company personnel told pest control treat his at Cook apart- police, would not doctors Children’s ther it, especially the he cleaned Burdick Hospital get ment until were out to him. the microwave where workers area behind eventually added also testified testified further found dead roaches. She who out to list of people *16 could not treat Father’s pest control get parents him. Burdick stated all 5, 2010, because Fa- on October apartment “watchfulness,” a degree of should to complied ther had not with instructions following, feeling but that “someone is control techni- pest it.12 clean When behavior, my as watching, monitoring apartment on October cian visited Father’s healthy way living.” parent is not of report. on his he wrote “Bad!!” above, reflects As discussed the record testified that maintenance also Coaxum angrily ques- to Father’s that Father employees refused fix dish- responded 2010 until he cleaned the chil- September washer in about his failure feed tioned However, dirty she also testi- rejected floors. during dren a visit and Corneli- complaint had no record of a fied that she buy us’s to take him to the store to offer unsanitary living violation for or' lease Further, food the children. Father’s for July June 2008 while during conditions prompt- at office angry outburst the VOA him. In con- living his children were with security implement organization ed the trast, apart- that Father’s Knox testified safety of of measures out concern messy. Barker just ments were And testi- employees. its Trammell also testified apartments were clean fied Father’s of spent beginning at the Father time January July of when she visited at with the children offices every visit CPS by yelling venting CPS workers to call and stated that CPS workers had Inability Cooperate d. Father’s times. security guard to redirect him at Supervision with of wit- stated that all DFPS’s Father in- Burdick testified that she conducted they “because counseling with Father nesses had been untruthful dividual sessions effect roaches would have no testified that the exterminator re- treatment 12. Coaxum apartment to feed apartment he would continue enter the fused to treat Father's until after the treatment. pest off the dead roaches removed the dead roaches because the managing finances, who for the wants to his and he had no prosecutor, plan all work improve. rights.” Specifically, Fa- terminate [his]
ther testified that Burdick untruthful view, In goal Burdick’s Father’s was to of her with Groomer— because contact any “exonerate problems himself from another with whom Fa- CPS caseworker said, get his children back.” She “[Fa- relationship—and ther had a contentious goal side, get people ther’s] was to on his Barker, Coaxum, claimed that Corneli- words, and those were [‘] his need to except respect us were untruthful with to make sure that is on everybody my side so testimony parts their favored get I can my My children back. life will pest him. Father also claimed okay get my be if I She back.[’]” control technician and maintenance any said that discussion improving his work inside of person who refused to his communication his ability skills or to think he apartment lying, stated that rationally only “agitate served him and likely “the telling doctors were most him angry.” During make Burdick’s time truth; going are not to risk their him, with improvement no showed medical license to lie.” himself, ability his to care respond
appropriately, anger. or channel Relationship e. Father’s Ryan Dr. testified that Father was con- an Person Abusive sistent in his he belief that did not need to change.. trial When asked at whether Fa- Sylvia, who paramour began ther would likely participate services periodically Father in living May DFPS, through Ryan said, offered Dr. and who with a child pregnant “Possibly,” although he is “fond of his, had a might history claimed children, ... says doesn’t need to of assaultive conduct. change anything.” Father stated during might upon that she live in his home Dr. Ryan’s 2007 psychologi- November *17 children’s return. At the time of the termi- evaluation, cal change “If I could one thing trial, nation Sylvia community su- myself, about it would to become a pervision elderly, for injury to computer network administrator.” Dr. previously charged been with theft as Ryan January also stated in his juvenile elderly. on the and assault She psychological evaluation that Father’s pro- disorder, also had bi-polar she had “suggests file who someone overevaluates another child not have custody but did of with ability cope his life [sic] stressors” that child. and that his “problematic Father deemed disability “proble- issues” a with his sole Unwillingness f. Father’s issue” being relationship matic his Changes Make Personal CPS. Burdick she was testified that concerned Father testified that he had taken a few County about properly College whether Father could classes at Tarrant care as re- for cently spring pursuit children because he was to take as 2010 in of one of unable care of own needs. two hygiene computer degrees—information his She stated secu- that, April rity technology as of she did not think or personal computer sup- caring Father He that his capable port. of for himself testified cumulative also Burdick, According grade or his children. point college was a 8.8 average caring himself, Father incapable planned returning and that he monitoring physical well-being, his own classes whén this case was resolved. cover stamps in the tional food the cost that he had lived
Father admitted
did
years
and a half
for two
additional child.
place
same
his
would
school
children
know which
contrast,
he
In
Gene testified that
He also
they
if
were returned.
attend
large corporation
for a
and that
worked
not have a toddler bed
that he did
stated
private
to work from a
office
telecommutes
he could
children but that
or a crib
home.13
that Jill was
He stated further
obtain those.
stay-at-home
mother with a bachelor’s
design
experience
degree
interior
Foster
g.
Parent’s
Father’s
preschools.
working
daycares and
Stability
Financial
not remem-
that
could
Father stated
Stability
Foster Home
h.
of Children’s
worked last and
ber where he
.The
shows that
children
security
evidence
supplemental
continued
receive
(SSI).
im-
mental
physical
record reflects that
demonstrated
income
care,
they
in a
illness eval-
were in foster
provement
mental
while
psychiatrist stated
community
given
part
provide
uation
the children
that Gene and Jill
environment,
Father
supervision that
nurturing
with a safe and
illness.”
“signs
symptoms
mental
call Gene
“Mom-
that
and Jill
children
why he continued to
asked at trial
When
Jill
my”
“Daddy,”
and that Gene and
despite
diagnosis,
SSI
this
receive
adopt
like to
the children if Father’s
Security
Social
Administra-
said
rights
parental
are terminated.
disability
status
had not reviewed
tion
caseworker Joanna Letz testified
CPS
mental illness evalua-
since the date of the
she had
casework-
been
children’s
tion.
er since
2010 and that Gene and
August
income consist-
“a
give
Jill
lot of attention.”
security,
stamps,
food
ed of his social
She also testified
Gene and Jill
donating
money
that he earned from
“very patient”
when
interacted
he was able
plasma. When asked whether
the children and that
children were
work,
“regis-
Father said
he had
parents.”
“very bonded to the foster
and, “I’m
Secu-
disability”
on Social
tered
Gene said that
the self-esteem issues
my job.”
rity disability;
A.B.
came to
exhibited
he first
why he
he did not know
stated further that
home
improved.
Gene’s
Gene testified
*18
Social
unable
work but that
to
initially
that A.B.
not
himself
would
defend
ruled that he
Security Administration had
“fall to
ground
often
was unable to do so. He testified
toy
if H.B.
a
him but
cry”
away
took
disability, he
to be
despite his
was able
opinion
his
gradually
of himself has
his
parent
full-time
children.
improved.
financially
that he
said
Johnson,
Elaine
professional
licensed
but
ready to have the children returned
therapist
children’s
returned,
play
counselor and
stamps
if
his food
saw
in
2009 and
to who
the children March
would increase from
allotment
$360
$400,
in
testified
money.
play therapy,
He
evaluated them
plenty
which would be
his,
anger
A.B.
lash
in
Sylvia’s baby
if
would often
out
also claimed that
first
Sylvia
enough
during
addi-
the first few weeks after he
he and
would receive
give
employer's
his
Gene’s contact
information and contacted
13. Gene was reluctant
previously
had
him at
name
obtained
home.
arrived at
and Jill’s
had
Gene
house and
vent termination of a parent’s rights); In
M.G.D.,
(Tex.
on one
tried to bite
She
occasion
Gene.
re
108 S.W.3d
513-15
testified that it
not unusual
for children App.-Houston [14th
pet. de
Dist.]
nied)
who have
trauma
out in
experienced
to act
(holding that
termination of the
way.
this
Consistent with Gene’s testimo-
parental
mother’s
in
rights was
the chil
ny,
initially
Johnson testified that A.B.
had
dren’s
interest despite
best
the fact that
opinion
a low
himself
and was distressed
she
her
completed
service plan).
In re
C.f.
actions,
by
“ego strength” W.C.,
H.B.’s
his
S.W.3d
765-66 (Tex.App.
grown,
had
and that now he
him-
defends
Fort
pet.)
Worth
no
(holding that the
self more. She also testified that
was factually
evidence
insufficient to show
been
Gene
working
to'help
and Jill
that termination was in the children’s best
with the
cope
brought
children
stress
interest because the
only
mother had not
by
attending
the transition to
school.
completed
service
plan
signifi
cantly improved her insight
coping
Trammell
testified that Gene and Jill
skills, family
relationships,
support
had a beautiful home. Letz also testified
Likewise,
system).
viewing
entire rec
that Gene and Jill’s home was clean and
ord in a
light,
neutral
we hold that
orderly
and that
children have their
factually
evidence is
jury
sufficient for the
trial,
own rooms. At
Gene and Jill offered
a firm
form
conviction
belief that
photographs depicting the condition of the
interest,
in
termination was
the children’s best
children’s rooms and the
in
living room
H.R.M.,
ee
i. parent power and DFPS’s to terminate his parental rights. Viewing light the evidence most judgment, favorable to the we hold Standing Parents’ Foster Inter- jury reasonably could have formed a vene firm conviction belief that termination
was in the best See children’s interest. We review a trial court’s denial of 263.307(b); § Tex. Fam.Code Ann. a motion to strike for an of abuse discre 573; A.C.B., N.L.G., 180 828, S.W.3d at see also In In re tion. See re 238 S.W.3d 294, 2007, 198 S.W.3d 298 (Tex.App.-Amarillo (Tex.App.-Fort pet.). 829 Worth no 2006, pet.) (holding although no a A trial if it court abuses its discretion acts parent’s of performance plan a service is any guiding without reference to rules or factors, is, likely to fulfill of the Holley principles, arbitrary some if the act is : plan pre Henry, service alone 221 compliance will not unreasonable Low v. S.W.3d 608 (Tex.2007); pres- of
609, Cummings, pictures no current the children to Cire v. 614 (Tex.2004). 835, jury because he had not seen ent to 134 838-39 S.W.3d half, year and a while the children a that Gene and Jill The court found trial publish were able to parents foster under section standing to intervene jury. “heart-warming” picture album 102.004(b), persons” permits which “other to inter- past contact” with “substantial comply All Texas must statutes affecting parent- vene in suit pending both the state and federal constitutions. Tex. Fam.Code Ann. relationship. child 311.021(1) § See Tex. Ann. Gov’t Code (West 2008). 102.004(b) § (West Russell, 2013); re 321 In S.W.3d that, “[s]ound there is We have held 2010, 846, orig. (Tex.App.-Fort 857 Worth standing the relaxed policy suppprtfing] above, family proceeding). As discussed in section 102.004be- requirements” found 102.004(b) persons with code section allows with “substantial allowing persons cause past contact” to intervene in a “substantial may “enhance to intervene past contact” affecting suit re pending parent-child ability adjudicate court’s trial Ann. lationship. Tex. Fam.Code interest of the child.” cause in the best 102.004(b). § N.L.G., 830. 238 S.W.3d at Cox, Tyler de In Rodarte v. court filed By time Gene Jill their constitutionality of termined the former intervention, the children had petition in 11.03(d) code, family section of the recodi- twenty- living been with them almost 102.005, is fied as section which similar Additionally," two the children months. 102.004(b) and adult any section allowed them, emotionally attached become child past with substantial contact adopt planned and Gene and Jill standing bring parental a suit for termi parental rights if children child, nation and see 828 adoption Thus, Gene and Jill had “sub- terminated. 65, 1991, (Tex.App.-Tyler writ S.W.2d 79 children, with the past stantial contact” denied); see Tex. Fam.Code Ann. also its and the trial court did abuse discre- 102.004(b); 6, 1995, § 74th Apr. Act of denying tion Father’s motion to strike.14 1, R.S., 20, 102.005(4), § Leg., ch. sec. See id. (amended (cur 2007) Tex. Gen. Laws 2. Due Process Tex. Ann. rent version at Fam.Code 102.005(5) (West § Act of Supp.2012)); argues par that the foster 1, 22, 1985, R.S., Leg., § ch. May 69th process violated due ent’s intervention 11.03(d), Tex. sec. Gen. Laws rights by interjecting the issue of their repealed by Apr. Leg., of 74th Act into the parent fitness to suit R.S., 20, 2,§ Gen. 282. ch. 1995 Tex. Laws concerning rights his fitness to retain his appellants argued in Rodarte that sec to them. Father claims that this caused 11.03(d)(4) tion be unconstitutional power rights an imbalance between only seek power permitted and DFPS’s cause the State parent termi parent’s rights. termination of a See 828 parental rights. nate his As evidence of imbalance, this Father claims that he had S.W.2d at by injecting argues province legislature new reversal the first our order should somehow cancel out requirements termination See En- into the statute. Atmos *20 156, all of the approximately Allen, three months ergy Corp. v. 353 S.W.3d Cities of time the children have been with Gene (Tex.2011). 162 However, we decline to invade the Jill.
609
held,
Fourteenth
the Department
The court stated that
the
and that
of Human
process guarantee pro
due
attempted
Amendment
Services had
to help them im-
parents when
arise between
tects
conflicts
prove their parenting skills.
Id. at 80.
parens patriae
State’s
interest15 and a
the
Rodarte,
Like
appellants
the
rights.
Morrissey v.
parent’s
Citing
Id.
appointed
counsel and received a jury
Brewer,
471,
2593,
481,
408 U.S.
92 S.Ct.
trial in which DFPS had the burden of
2600,
(1972),
33
the
L.Ed.2d 484
court
grounds
proving the
by
termination
observed, however,
process
is
“[d]ue
clear
convincing
evidence. See id.
procedural pro
flexible
calls for such
He also received services from DFPS and
as the particular
tections
situation de
Further,
VOA.
Father does not direct us
mands,”
it
factor
set out a three
test
any
to
by
evidence offered
the
par-
foster
319,
Eldridge,
from Mathews v.
424 U.S.
ents that DFPS could not have
offered
893, 903,
96 S.Ct.
L.Ed.2d 18
47
Thus,
the
parents
foster
not intervened.16
(1976),
assessing
due
Ro
process.
we hold that the trial court did not violate
darte,
stated,
bition and offer of re- copy an unredacted Burdick’s tion. port. presence the of the At outside trial and allow asked the trial court to
jury, Father We review trial court’s restriction be admitted polygraph to evidence of the cross-examination of scope of Father’s Burdick on could cross-examine so he an of See Burdick for abuse discretion. Specifically, him. alleged against her bias Hollmann, v. No. 02-11-00136- Kramer to cross-examine Burdick Father wanted CV, 5869423, (Tex.App. at *8 2012 WL poly- consider the why refused to she (mem. 2012, pet.) Fort Nov. no Worth determined when she graph results Ferris, v. op.) (citing Austin Rd. Co. should be ter- parental rights whether his (Tex.Civ.App.-Fort S.W.2d Worth minated. Father noted Burdick n.r.e.)). 1974, writ ref 'd to CPS in a her conclusions submitted that over third The record reflects one her com- report allegedly contained testimony of Burdick’s cross-examina- to take a regarding ments decision many tion of by counsel polygraph examination. Consistent with appear to have been questions counsel’s limine, Burdick’s comments the motion in al- calculated to demonstrate Burdick’s examination were polygraph regarding Bur- leged bias. Father’s counsel asked before report redacted from the it she in- thought dick whether Father was evidence. admitted into violence, he volved in domestic whether claimed that Burdick’s bias in- agitated was entitled to be CPS’s the fact he against him stemmed from volvement, she had him whether accused injuries. remorse A.B.’s showed no over being paranoid, of and whether his actions poly- He submitted to the claimed willing- affected class and session her to convince graph examination Burdick point, ness to counsel him further. At no injured that he A.B. In order to however, did Father’s counsel ask Burdick bias, show Father claimed that Burdick’s knew injuries, what she about A.B.’s to cross-examine her on the needed thought whether that Father had report of her which portion redacted A.B., opin- any struck whether she had that she had said that he alleged alleged ion about his lack of remorse for money by taking polygraph wasted injuries, nothing in record A.B.’s pointed DFPS out to the examination.17 prevented from do- indicates ask trial court that could Burdick ing so. discussing poly- about her bias without graph examination. Additionally, does the record not contain (cid:127) report, an unredacted of Burdick, copy Burdick’s After DFPS examined it of- thus we cannot evaluate whether the re- copy fered of Burdick’s re- the redacted gave of report jury dacted version port objected into evidence. Father on the impression alleged See prohibit- rule of false bias. ground that evidence Enters., County Lucky Lady Sw. Inc. v. copy ed introduction of a redacted Co., report. (Tex.App.- Evid. Oil 991 S.W.2d 493-94 See Tex.R. 107. The denied); report pet. trial court admitted the redacted Fort Worth see also request, the trial court to allow him to Father made a bill review on Father asked record, polygraph re- copy poly- cross-examine Burdick on which included a polygraph sults or admit the results into evi- graph examination results. dence. After the trial court denied Father's *22 33.1(a)(1)(B); P. Tex.R. Tex.R.App. Evid. insufficient evidence existed to establish 103(a)(2). Moreover, polygraph grounds examina- the two for termination that the civil are inadmissible in cases. In Texas of Department Family tions re. Protective W.B.W., 11-11-00269-CV, (TDFPS) proceeded trial, No. 2012 WL Services on at 2856067, (Tex.App.-Eastland July at *16 endangering family environment under denied) (mem. 12, 2012, 161.001(1)(D) pet. op.). Conse- code section and endanger- quently, ing we hold that the trial court did family conduct under code section 161.001(1)(E). by refusing 1, not abuse its discretion On remand after A.B. Father to Burdick again sought allow cross-examine on State termination Fa- of comment polygraph parental about his exami- ther’s rights .under family code Kramer, 5869423, 161.001(1)(D) 161.001(1)(E). nation. See 2012 WL at sections point. overrule fifth proceeded *8. We Father’s case to trial for a second
time, and TDFPS offered into
no
evidence
new facts in
of
IV.
support
termination
Fa-
Conclusion
of
rights
ther’s
family
under
code sections
Having
dispositive
Father’s
overruled
161.001(1)(D)
161.001(1)05).
A com-
we
points,
judg-
affirm the trial court’s
parison of the evidence offered at the first
ment.
and second trials is detailed in
In
A.B. 2.
A.B.
after thoroughly comparing the
MCCOY, LIVINGSTON,
J.;
C.J.;
evidence
admitted at
first trial and the
GARDNER, MEIER,
GABRIEL,
JJ.
trial,
evidence
admitted
second
panel
court,
of
justice
this
one
dis-
WALKER, J.,
dissenting opinion
filed a
senting without opinion, found that no new
J.,
DAUPHINOT,
joins.
in which
evidence supporting termination of Fa-
WALKER, Justice, dissenting.
SUE
parental
ther’s
based on
rights
either fami-
’
ly
161.001(1)(D)
code section
family
respectfully
I
dissent. This court has
161.001(1)(E)
code
grounds
section
was ad-
already written
opinions reversing
two
two
mitted on
again
retrial and
found that the
court judgments terminating
trial
Father’s
evidence
legally
factually
sufficient but
A.B.,
parental rights.
re
See In
No. 02-
support
insufficient
termination based
09-00215-CV,
(Tex.
review. fails ear, slap despite to A.B.’s and Father’s the opinion analyzes majority ord. The compliance plan, with his service the en TDFPS, fails but it evidence favorable to mentioning any of majority banc without mention, discuss, analyze or much of to evidence, that this holds to favorable Father- evidence evidence jury reasonably could have conclud- Wright that Nurse Donna such as both engaged that Father in a conscious ed they and Dr. Peter Lazarus testified that consistently by failing of conduct course to tests have needed conduct more would to his children that adequately feed and making diagnosis before a failure-to-thrive voluntarily engaged he in a of course 2007;1 for in as that Moth- May H.B. such children, hostile conduct around CPS who person er was the took caseworkers, other that and authorities children; as the doctor fed such and (for injuries culminated with A.B.’s that is a small man and was a small pleaded guilty which he to criminal thought child testified that he H.B.’s and further the chil- charges), endangering genetically-related; such as that size was well-being. and emotional physical dren’s he paramedic Chris Conner said Maj. all Op. at No evidence exists at 29, 2007, September saw H.B. A.B., H.B., opposed as was mal- little underweight a but not emaci- looked a No evidence exists of course nourished. ated; Wright as that testified such Nurse children, of hostile conduct toward the and by injury to his ear was caused A.B.’s hostility toward and “CPS caseworkers testimony as and such slap; any other authorities” is not relevant pleaded guilty injury to a parental rights element of termination of only being after slapping A.B.— child— 161.001(1)(E). family under section code days, jail seventy-five being unable to sufficiency analysis A correct factual $20,000 bond, being post his told record; must include entire the court post if he could not his bond he evidence, analyze must all of the both the jail approximately years remain in two evidence favorable to Father and the evi pleaded guilty. until The trial unless See, In e.g., dence favorable to TDFPS. Fa- majority en banc fails to mention that re H.R.M., (Tex.2006). S.W.3d addiction, drug ther has no or alcohol has whether, analysis is then based on the housing, has provided maintained stable record, reasonably entire a factfinder could income, proof has steady worked or form firm conviction belief about services to the satisfaction of TDFPS to grounds alleged truth of the termination has regain point, his children one TDFPS; if, record, light the entire continuously pursued relationship with disputed evidence that a reasonable his children. could factfinder credited in favor the fact that ex- Despite three medical finding significant is so that a fact- perts favorably to Father not reasonably finder could have formed testing belief, did not know without further such firm a conviction then suffering H.B. A factually whether failure evidence is insufficient. Id. appeared complete analysis, and that H.B. be a factual tak- only sufficiency thrive diagnosed early knowledge Oc- 1. H.B.'s condition was conduct and before that Father's undisputed tober evidence support rights time to termination of gained weight began that she to thrive 161.001(1)(E) grounds. section after that time. So evidence must show record, into account the entire has ing court, by this performed twice
been children, rental rights to his A.B. and H.B. this court held the evidence to be twice Father argues legally factually factually insufficient to enable a factfinder insufficient exists support evidence ter- a firm conviction belief that to form rights mination of his parental under Tex- endangering in an course engaged 161.001(1)(D) Family Code sections family conduct under code section (E)2 and to support finding that termi- *24 161.001(1)(E). SeeA.B. 1 and A.B. 2. parental rights nation inis the chil- factual suffi- Applying appropriate See dren’s best interest. Tex. Fam.Code review, ciency as this court standard of 161.001(1)(D), (E) (Vernon 2008). § Ann. 1 and in A.B. in A.B. I would hold that Father also that the contends trial court factually remains insufficient the evidence process rights by violated his due denying Father’s support parental termination of him expert access to witness fees. Be- code rights family under section cause factually the evidence is insufficient 161.001(1)(E).2 Majority Because does to support parental termination hold, I dissent. respectfully not so (D) rights (E), under either we will reverse the trial court’s judg- termination Appendix ment and remand this case for a new trial. COURT OF APPEALS II. Background3 Factual OF TEXAS
SECOND DISTRICT A. Marriage4 Mother and Father’s FORT WORTH and Domestic Violence Missouri Mother and Father met on a telephone NO. 02-09-00215-CV chat line and approximately dated one H.B., A.B. AND IN THE INTEREST OF year they before on February married CHILDREN Texas, 2005. Mother is from and Father Missouri, they is from so bounced back THE FROM 322ND DISTRICT COURT and forth the two between states for OF TARRANT COUNTY while. OPINION1 MEMORANDUM Testimony5 1. Mother’s
I.INTRODUCTION issues, four Mother said Appellant appeals In that when lived Missouri, terminating pa- the trial court’s order Father hit her more than once 2.Because, analysis recognize 3. We based on the set forth in some of the witnesses’ testimony conflicting 1 and and inconsistent. A.B. A.B. I would hold that background opin- This factual section of our factually support evidence is insufficient ion, however, testimony given, sets forth family under code termination section apparent- even when it is or even inconsistent 161.001(1)(D) 161.001(1)(E), and section it is ly incorrect. unnecessary sufficiency to address the support finding. evidence the best-interest trial, 4. At the time al- of the termination Father, though Mother married was still Tex.R.App. 1. See P. 47.4. pending, divorce action was and Mother was pregnant boyfriend’s child. reading, ease of 2. For these subsections are "(D)" simply Although parental rights hereinafter referred to as Mother’s A.B. "(E).” H.B. were terminated the same time allegations were false. She said Mother said that pushed her. quite called CPS often because argu- both consisted of
domestic violence the case wanted them close confrontation that she physical ing an in- harassing caseworker with her- defending Father while hit probably said tone of voice. Mother appropriate police never called self. Mother surprise caseworker made a the CPS to a bat- she never went report, made phone visit their home due to Father’s shelter, and Father never women’s tered Mother calls to their office. and Father violence in Mis- for domestic was arrested moved to Texas. thereafter souri. Testimony 2. Father’s Testimony 2. Father’s CPS became involved Mother *25 year during his first Father said that Missouri, in but they Father while lived Mother, were marriage police never to that the Father said realized “[CPS] ar- apartment them loud called out to that were made were false. And referrals there was no guments fighting or because so, three-day period, they after a two- to Father also testified domestic violence. They did offer closed out case. not but not strike Mother that she any or the child.” services remove struck him. D. The Move Texas to B. A.B.’s Birth Mother and Father to Tex- When moved as, apartment was Re- their first at the Testimony Mother’s 1. near gents Apartments Westcreek Cove A.B. was born in Mother testified that worked, Fort Mother Drive in Worth. in April Missouri sometimes; however, they worked Father could they worked different shifts so Testimony 2. Father’s take A.B. care of A.B. born with the umbilical cord was HJB.’s Birth E. neck, a healthy but he was around his 25, 2006, Fort H.B. was born June took to baby. they said that A.B. Father weighed pounds, Worth and six twelve hos- regularly only the doctor and that Father when H.B. was ounces. worked the one at the center this pital visit was go Mother back work. born until could case, which is discussed below. F. Domestic Texas Violence Investigation C. Missouri CPS Testimony 1. Mother’s Testimony Mother’s Texas, they After moved to Father con- lived in Mother,
While Mother Mis- yell yelled and she tinued souri, A.B. investigated them because CPS pregnant back. While Mother her; H.B., cap pushed had cradle a rash because Father hit her and hit back back dirty. push Mother felt that would not but them house was Father’s, compliance judgment. regarding not Mother’s with her ser- appeal she did pertains testimony attempt analyze We as it plan include not vice do endangering endangering conduct and envi- parental rights of her termination whether findings ronment that the trial court made proper that issue is not before parental rights it terminated us. H.B.; however, testimony omit A.B. and we After go employed; instead to another room. Mother he received Social Security H.B., disability payments for gave she and Father contin- ADHD. birth ued to off and on. argue Mother rented her apartment own August Bedford in 2007. After Mother instigated
Mother said she never moved into her own apartment, Mother physical altercations. domestic and Father watched the children.8 every violence occurred “once several always physi- months” and did not involve Testimony 2. Father’s cal Mother violence. said that children years H.B. two old and A.B. was but present that Father was never three when separated. Mother and Father physically violent to them. Father said that when Mother received an Sprint, check from Testimony $800 she decided to 2. Father’s leave him. She went to Mansfield to live no fights said there were with her sister. Father said that Mother’s prior separation violence Moth- leaving “kind of hurt” but that he could not er, police and the were never called to force her stay. During sepa- the entire apartment. their said ration, Father watched the a cou- [money] “fussed over but that lot” it ple during of hours the week on a *26 point never came to the he where became consistent basis. Jennifer W. watched the violent Mother. Father said that if children while Mother worked. Father did they arguments, they had not have not keep the children overnight because he them in front children. was having maintenance issues with his Separation
G. apartment. Father said that there was a hole in the ceiling through bathroom which Testimony
1. Mother’s in, bugs coming were and the dishwasher Mother left Father approximately broken. July 2007 because was abusive. When After Mother had with her sister lived Father, separated she from Mother moved month, for about a she then moved to brother-in-law,
in with sister Jen- Bedford. said Father that after Mother W., Gary nifer and for a Mansfield Bedford, moved to he saw the children month.6 Mother testified that Jennifer W. (a couple same amount time hours did not take care of the children while basis); week on an inconsistent Jennifer Instead, Mother worked.7 Mother took keep W. continued to while children apartment children Father’s while Mother at work. Father said she Fort Sprint worked in Worth at from did keep the children a weekend 3:00 p.m. midnight Father was because not want be in because he did them to 6. Jennifer W. testified that had noticed while was at she Mother work and Father Mother, initially bruises on watched Mother told the children "sometimes.” bumped her that had a wall or into 8.Jennifer lived W. said Mother never separated hit After Mother herself. from Fa- her; ther, straight Mother went from Father’s said that hit her Mother Father had apartment apartment. into her own Jennifer caused the bruises. Mother told Jennifer W. provide babysitting W. did not services to separated that she had they Mother and Father’s children while being very he was abusive toward her. separated; told Jennifer W. that Mother Fa- 7. H.B.’s ther medical records revealed Mother watched the children while she worked midnight. said that p.m. Jennifer W. watched from 3:00 during the physical mainte- violence occurred long due
apartment off chil- dropping she was times when nance issues. from Father’s up them picking dren Illness H. Mental Mother trusted Father with apartment. Testimony Mother’s despite the violence the children domestic prior separation occurred bipolar. he was told Mother that as far anything, “did not see because she they got taking Welbutrin before He was April From A.B.’s birth in as the kids.” stopped. Mother married, then he the time that Mother throughout very angry and Father was noted that never separated, tak- Father were he was not argumentative more re- children. Mother had also harmed the ing his medication. Fa- the children’s doctors that
ported to Growth Issues J.H.B.’s insomnia, Syndrome, Tourette’s ther had as an ADHD, history of seizures Testimony 1. Mother’s infant. Mother took the children Cook’s Clin- Testimony 2. Father’s well-baby check-ups. Mother said ic diagnosed Father testified that Father took H.B. the doc- that she and spent most with ADHD as child she was they separated before and that tor very early age his childhood—from after the one who took H.B. to doctor custody he was CPS where adulthood—in separated. seventeen foster placed in sixteen or having admitted emotional homes. Father pretty H.B. was agreed Mother *27 majority of adult life problems the very but growing and was not fast small things going haven’t been “because during eating regularly that H.B. was said go I as edu- way them to far wanted any time to have appear that and did not he cation stuff.” Father said that Mother said that problems health-wise. extremely might day depressed one to the about H.B.’s she talked doctors led happy day next but that it never gain, and the doctors were weight slow anger.” “to the of complete level impression that H.B. took after under the After I. No Domestic Violence Father, growth had taken hormone who Separation grow. The doctors did shots order feedings. change not ask Mother to H.B.’s when
Mother said that Father’s mood con- Mother said that she did not have a daily dropping off the she saw him while else, W., anyone or versation with Jennifer was the same as when he was weight H.B. to for medication; taking about the doctor he angry, on his he was but that no did not her. Mother said issues.9 strike H.B., an appointment chil- but there was never W. said Mother and the Jennifer that prior frequently dren H.B.’s W. appointment. had visited her It was to Jennifer obvious hospitalization, W. so Jennifer had lots Jennifer W. told that was in distress. H.B. W. opportunities to see the children. Jennifer help if she needed with formula Mother that very appearance was concerned about H.B.’s was help her. Father or food that she would through July September and told time, during he knew Jennifer there so healthy. H.B. did not look Moth- Mother that W. was concerned. a doctor’s er told Jennifer W. that she had seizures, Testimony
2. Father’s that the repeatedly occurred until hospital. H.B. was at the Mother said that go to visit in Father did not the doctor Father went to the when hospital H.B. was May underweight H.B. was 2007 when being treated. chart;10 falling growth off the Mother said fine, said Mother that as result of so Father know H.B.’s that H.B. was did not visit, hospital Department the Texas underweight. that H.B. Father said was (hereinaf- Family and small, Protective Services just that H.B. was born “CPS”) ter Department” “the became thought having time tough involved. After H.B.'was released from it growing and that took some children a hospital, children went to live -with longer develop. little than others to W. for eight or nine months Jennifer until he and were Father said that Mother they were returned to Father. purposely doing anything that would kept thriving. ap- H.B. from H.B.’s Testimony 2. Paramedic’s Cheetos, fine; petite was she was eating Conner, Chris a paramedic with the crackers, they pizza. said that Department, Bedford Fire keep to’ always refrigerator, able 29, 2007, September p.m., at 9:58 he re- stocked, freezer, cabinets and the sponded to a call that a child was having a they sure that always made their children seizure. When he arrived at Mother’s ate. apartment,11 he found H.B. to be a little agreed H.B. was fifteen Mother lethargic. told him that H.B. was September months old in 2007 and in her crib Mother heard some nois- walking she was not crawling; she es; started air gasping H.B. and shak- trying to “scoot.”’ Father said H.B. ing her arms. Mother it said looked like enough could sit she was up when close having seizure, H.B. but she had no couch, against only sit but she could sit history of seizures. could not tell Conner up herself for a few before seconds seizure, whether H.B. had suffered falling over. immediately asked one firemen who came with him grab, K. H.B.’s H.B. from Seizure Mother’s arms and to her out take Testimony 1. Mother’s so ambulance could assess her. *28 29, 2007, September On had Mother .H.B. not have a seizure Conner’s visiting been in Mansfield with Jennifer presence, and her vital were all signs sta- W., and H.B. been had outside most the acting physically, ble. H.B. was fine but day. Mother- at children were dehydrated she was exhibited skin apartment Mother’s when H.B. a sei- tartar, had skin meaning that her felt “real zure. H.B. was conscious sei- during the elastic.” Conner said that H.B. “looked a zure, head, eyes but her rolled back in underweight her little for her size” was not emaciated, and she twitched. Mother said that had an on her abrasion fore- EMS having stage, crew saw H.B. a seizure and head that was in a healing go sitting 10. Father Mother said that did not let him on the Conner still stove. de- ap- pediatrician her to the children's apartment scribed Mother's an unclean pointments often. that environment was below standards be- only Sprite, cause its contents were a bottle of 11. Conner said that he noticed home that the mattress, an a air and car seat. dirty. was He said that there lot of were a sink, dirty pots pans dishes in the fifteen hospital, was her,” including dirt under admitted to on of dirt “a lot at saw there was months old pounds, that and she fifteen fingernails. her Conner her on bottom and scabbing a lot of her well below weight put was the time. H.B.’s in her dried blood there was some chart. growth the fifth percentile diaper. if H.B.’s failure-to-thrive con- When asked two have obvious dition would been the abrasion on told Conner that
Mother who saw the before to relatives months by throwing was A.B. a head H.B.’s caused it Dr. every day, child Lazarus said days four earlier and that H.B. at her toy diaper people rash that she continued less had a would have been obvious every day to scratch. it would who the child than saw who had not seen been to someone Hospi- advised Children’s Cook Conner Dr. Lazarus for three months. child if they asked of the situation and tal medical showed said that the records H.B.’s largest His concern was call CPS. born, twen- was in the injury it was unknown how H.B. she was head because was and the abrasion noted ty-fifth percentile.12 severe Dr. Lazarus that she did take had admitted Mother check-up on that H.B. had her nine-month have it hospital cheeked. H.B. clinic, neighborhood April at However, Conner believed Mother’s in the percentile. was tenth weight injury A.B. explanation —that falling Dr. said Lazarus H.B.’s toy, which hit head —was threw twenty-fifth tenth percentile at birth to the injury. consistent within the percentile nine months later is some children realm of normal because Testimony 3. Dr. Lazarus’s bigger genetic poten- “are than their born Lazarus, pediatrician Dr. Peter it takes tial.” He also said sometimes Hospital, Children’s Cook nor- into their get a while for children pediatric in the intensive H.B: treated channel, or two growth falling mal so one (PICU) for seizures and was care unit unusual. growth channels or curves is not failure thrive. treated in his ward for that if the child was seen at But he said The cause of H.B.’s seizures a chemi- and at fifteen months and twelve months hypo sodi- cal imbalance referred to as low off, starting to that would growth was fall It um. It is not a chronic condition. con- if he was alarming. When asked days or three would take hours to two H.B.’s because she cerned about health danger. and be appear the condition to chart, Dr. growth below down he did not think that Dr. Lazarus said that said, “Well, certainly is not Lazarus it brought condition could be optimum growth.” a lot water giving Mother’s child day activity after a the warm weath- what the are that triggers "When asked *29 normalized, level er. When H.B.’s sodium know the child is in parent let stopped. her seizures said danger thriving, Dr. Lazarus “well- should find out at parents that the was with “failure to diagnosed H.B. baby He did not when was care” or routine care. weight thrive” because her she growth be- re- was about H.B.’s brain 12. The medical charts that Dr. Lazarus concern developmen- viewed also noted that H.B. circumference was small and cause her head crawl, walk, delays; pull curve, up, tal she growth did not falling H.B.’s was off the alone, up normal sit which would been CT normal. scan was for a child. There tasks fifteen-month-old unit, gency know whether the doctors at Cook’s Clinic response she had triggers check-up the at H.B.’s five or 30, saw September received referral on presented six months before she to the stating brought that H.B. had been to the if hospital. Dr. Lazarus said that the child hospital by at p.m. Septem- EMS 10:00 on months, twelve the problem was seen at ber 29 for seizures. Hall went to the should have been addressed. hospital about noon on September 30 to see H.B. and appeared pale noted she hospitalized, began was H.B.
After she and very small for her age. H.B. had a all thriving. Because of H.B.’s metabolic diaper rash and had an on abrasion the normal, screenings were all the medical right forehead, side of her which at Mother personnel hospital properly the was said her, occurred A.B. threw a Buzz what her gain feed which is caused Lightyear toy her Hall weight. September From 29 to October head.13 said hospital, personnel in the medical her while was H.B. told ounces, H.B. gained pound, one eleven which was hospital admitted because Dr. “extraordinary they Lazarus said was an weight concerns about her weight gain hospital.” During the seizures that she having. was nine from H.B. the date that months Mother day told Hall that on the H.B. 29) hospitalized (September until her sec- room, taken to emergency she had (June 25), birthday ond she went from well fed H.B. a peanut half of and jelly butter percentile weight below the third a.m., along sandwich around 10:00 seventy-fifth percentile, length her went water Sprite. Between going from well the fifth percentile below house, lake and then her relatives’ twenty-fifth percentile, her head cir- Mother fed H.B. some crackers. Mother percentile cumference went from the third and Jennifer left the W. percentile. to the fiftieth Dr. Lazarus said mother-in-law, care of Jennifer W.’s whom weight gain “really that H.B.’s sub- Mother something assumed had fed H.B. stantial” and told him that thriv- she'was gone. while Mother told Hall ing. improvements These ruled 'out a he- that she children had arrived reditary gain cause for H.B.’s failure p.m.14 home at 7:00 Mother around While weight. a more Dr. Lazarus had solid ready, was getting dinner she heard H.B. opinion medical at trial than had while make really strange “a noise.” Mother hospital H.B. was in the he had looked and gasping saw H.B. was two-year received the results air, bad,”- “drooling really she was checkup, opined, so that H.B. was inade- twitching. that her left arm was Mother quately presented nourished when she neighbor, neighbor contacted her and the September told Mother to call EMS. Testimony Investigator’s
4. CPS Hall also obtained some additional back- Hall, ground family an on H.B. and her from Moth- investigator Stacie with CPS the night response weighed who worked in or emer- er. Mother that H.B. six said September discrepan- 13. Father 14. Hall called CPS office said that there were some 30, 2007, talked throughout to-Hall. He also said that cies about what Mother did *30 injury by throwing H.B.’s was caused A.B.’s day; they at the Mother said that were lake toy Lightyear Buzz at her. Hall said that the day they all said that were there for then injury explanation looked consistent with the only fifteen minutes. given. that Mother Father had Hall that case found “rea- she born said was ounces when was pounds, twelve neglect” her for due to physical last doctor visit was son to believe that H.B.’s check-up. underweight fact H.B. for her thirteen-month well that was skills, gross motor was de- age, poor had sep- that she had been Mother told Hall delayed, and had not been velopmentally months, for two arated from Father about May; seen doctor because all since had not she but Mother did mention who normal, the De- H.B.’s tests came back living separated. while she was been with that H.B.’s partment determined condition that during told Hall that the time Mother neglect.16 was due to Fa- separated, Mother Father in the ther was still involved children’s Testimony 5. Father’s Mother said that Jennifer W. lives. said that he became aware of the Father lady helped watch children another H.B. when medical crisis with Mother worked; never Hall while she Mother told him hospital called him from the and told that Father watched the children while him, told CPS was involved. Mother worked. “[Pjlease, get please upset don’t with initially any domestic vio- Mother denied if speak them.” Father asked he could said that Father had been lence but then worker, social and that was when last six physically violent months Hall her conversation with Father. him. marriage, why which is she had left go hospital did not until they Mother told Hall that had a CPS Monday transpor- because he did have neglect for lived referral H.B. still in the tation until time. was Missouri. arrived. Father said PICU when Father Father, he said When Hall interviewed stayed that H.B. there three four baby jar food out of a H.B. ate days then to a room. was transferred every drank whole milk. Father said hospital at stayed continuously light give now and then he would her some was while H.B. there. solvent,” potatoes or did not “light he problem he had a Father said that explain by “light what he meant solvent.” giving the formula the doctor was that he and Mother had said it her stomach causing H.B. because was separated been about two or three weeks it making to become bloated and hard but denied there vio- was domestic her to movement. Father bowel Fa- relationship lence in his with Mother. nurses, they ultimately spoke to ther later said that Mother assaulted formula, changed problems and those why Hall him once. When asked Father away. problem went Father also had a hit- Mother would have said that he was him informing with the doctor’s not what her, going Hall he ting told going asking on and not for Father’s support court to file for child permission to treat H.B. (i.e., kept the most of the time15 work). Voluntary L. Placement whenever Mother Cornelius, unemployed Father told Hall that he was caseworker for La’Morra family, her affidavit that the rea- (SSI), averred in Security and received Social Income voluntary placement for the included sons explain why he was but he developmental de- H.B.'s health and severe receiving SSI. lays, well as home environment which she lived. *31 Testimony 1.Hall’s M. Family-Based Father Worked (FBSS) Safety Services Hall recommended that the children be voluntarily placed with Jennifer W. and Testimony that a opened provide case be with CPS to Father said that he immediately wanted services to Mother and Father. Mother get started on his service plan and that signed agreement stating an she “jumped he right on it” “got stuff [his] stay would let her children with her sister. done” as soon as CPS issued the necessary Hall voluntary said that placement forms. Father said that it took about two kept the children from going into foster months after the voluntary placement to care. already A.B. was staying Jen- start the plan. Father said during W.,17 nifer and H.B. was taken to Jennifer FBSS, time he was working his CPS W.’s house after she was discharged from made an unannounced visit to check on the the hospital.
condition of apartment, the sleeping Testimony 2.Father’s arrangements, and the food that he had on hand. Father also signed papers to allow W.;
his children to live with Jennifer he parenting took classes with Jan- thought Barker, that if he did allow his chil- ice who was with Volunteers of her, stay dren to (VOA); he would lose his America completed psycho- parental rights because logical is what the Parnell; consultation with Dr. investigator told him. up CPS left it to he underwent a psychiatric evaluation with Jennifer toW. determine when Father Dr. Yackulic at John Peter Hospital. Smith visit, could so Father was allowed to see participated in individual counsel- only children about once a ing month. Fa- with Norma Bartholomew and was ther admitted that he “enough- com- supposed sessions, to have ten they plaining” getting about not to see his chil- mutually agreed to stop at the seventh dren eventually^ three or four months session because there was not a bond be- later, up caseworker set supervised tween them and because she was siding visits at the CPS office instead of at Jenni- with CPS. Father Judy said that Gaither fer W.’s residence. After the visits were was anger management his' instructor. office, moved to the CPS Father was al- got along well with Gaither be- lowed to visit with the children on a week- cause she took the time to listen and un- ly basis. derstand the situation that he was in and “basically just didn’t throw out the [him] Testimony
3.Jennifer W.’s door.” After Father completed his list of Jennifer W. testified kept that she services, gradually CPS increased time children from when H.B. was released spend was allowed to with his hospital through June 2008. Jen- children. nifer W. said that gained Testimony 2. Barker’s weight that Early Childhood Interven- tion services were offered to the children Barker testified that in January while were in her home. provide received a referral to services 17. Hall saw A.B. and noted that height weight. he was in of normal health; good appeared clean to be *32 he to Father that explained him. Barker parenting over Barker went
to Father. healthy food in home to had to his put budgeting and home- and worked skills provide he could food show CPS that Additionally, Father. making skills with him on placed were with case the children transportation to Father provided Barker any given day. could visit with his week once a so Father February From March children CPS. by putting the sheets progress made very Father was hostile Barker said that purchas- him on the gave the VOA bed and explained until she toward services visits, saw ing During later food. Barker them; he worked with the at that point, was and had not that the same food there during hostile to CPS but remained VOA it agreed But Barker been touched. him. she worked with the entire time that food keep for Father to was reasonable his -Father talked about Barker said that returned to for when the children were bit,” “quite a but never talked case CPS it was not unusual that him and that his getting children going about food eaten. was not the trial court asked them. When remove told Barker Although Father anxious while in if she ever felt Barker diagnosed anything, with had never been said that had a presence, she Father’s Father around paced Barker noted that relationship with working Father good his apartment his and talked about how feel like he was hostile that she not being “very father were violat- rights as a her, CPS, but she only toward why made an ed” that was he had him, especially Ser- agitate. appointment Legal have at West Texas wanted why the vices. did not understand were because she Father while the children there after placed children with him were removed the chil- physically could not have with H.B. while she problem occurred dren. he had possession was Mother’s Barker identified in her The issues that day. every taking been care children apartment visit to were that first him children why When Barker asked food, little there were no very there was him, admitted placed were not Father bed, there on the were stains sheets it was not as clean as apartment issues, carpet;18 than on the other those relatively could been. Father was have clean. The food apartment only was January through March appropriate from refrigerator a 2008, in the agitation, pacing had except for the bread; around, nervousness, usual- meat and the which package small of lunch ly spoke when he occurred CPS. vegetables no fruits or the fact he had told a concern. Father Barker learn the appeared willing stamps for chil- he did not have food in the participated materials and parenting only stamp his own food dren quite well parenting classes. Father did very money. get- Father was resistant to quiz completed parenting on his final food because he did not ting sheets and all his classes. When parenting classes, why pushing the is- Bark- completed parenting understand CPS caseworker living were not er talked with CPS sues since Father did not apart- an take of. Barker said that 18. Barker admitted that it was older care carpet any pets. ment and that the stains on something that the landlord would have *33 closing discussed the VOA services Father “so said that both children were in not too depen- [Father] would become diapers. He had attempted twice to potty upon transportation dent to and [their] A.B., train but A.B. had issues with not from the children’s visits.” wanting to sit on the toilet. Father said slowly progress wanted to A.B.
N. Children Returned to Father into potty training instead traumatizing Testimony 1. Mother’s him. Father said there was no argu- ment or forcing the issue. Cornelius, caseworker, Ms. the CPS told going Mother that was CPS allow Fa- O. Mother’s Domestic Violence Inci- ther to have the back in children his home dent services, because completed he had his apartment children went to Testimony 1. Mother’s Jennifer Mother W.’s home. had some 16, 2008, Mother said that on June she placed concerns about the being children went over apartment to Father’s back with Father. She wondered whether her; he had called she did not make a he could take care financial- scene, she did punch Father in the ly thought had she “mentioned to face, and no citation issued. When idea,” good someone that is not a but she Father’s attorney produced a citation dat- did not remember whether she pressed it contact, ed June 2008 for assault any further. Mother admitted that she Mother said that first time that was instructed not to have contact with she had seen the citation and that she had Father completed until she her services. not been told that she had been issued a citation. Mother said she went Testimony
2. Father’s apartment Father’s to see the children Father testified that children were only once; she denied there was an returned to him on June incident in which went to Father’s said that CPS did not have reservations apartment, leave, unwilling she was about him or they would have returned she was the door by escorted to Father. the children to him. While Father had the children, Mother was allowed to see them Testimony 2. Father’s only at the CPS office with supervision. When Mother apart- came Father said that the children’s schedule ment on June she knocked on the
when they were waking with him included door and said that she wanted to see the nine; up eight eating pancakes around children. Father her that told he could breakfast; or biscuits for playing not let her see the children because Ms. living room with toys; playing outside on Cornelius had said that Mother was re- pizza, the playground; eating hamburgers, quired to have supervised visits. Father dogs, lunch; hot or bologna sandwiches for Mother, said that he told “I’m television; going to playing and watching eating fixed;19 have to you dinner that ask to leave ‘cause I don’t giving them a bath want again.” before bed. to lose [the children] cooking 19. Father said that his food skills were that Mother and Father ate. Father said they mostly "[n]ot the best in the world” but that he weaned could H.B. from her year cook microwave some food and on the stove. bottle at one and that she ate small three, eating When scraps.” "eating A.B. was he was “table "table She was as much beans, scraps”: green vegetables, table and normal food as she take in.” could concerned with whether those had slightly, and Mother she was the door opened Barker like Father’s been addressed. felt in and bed- pushed way her went agitation higher level” “probably at watching the children were room where than she considered to be normal for what told Mother that she television. Father back, people in situation. leave, *34 put her arm behind had to apart- her out of the and tried to escort to Father’s apart- Barker went When bedroom, way On the out of ment. l,22 July she concerned be- ment on out to of Father’s arm Mother tried break very Father had little furniture and cause frame;20 eye and hit her on door He bed in his very little food. had a left, apartment manag- Mother went to room, bedroom, living bed in the toddler er, attempted Father to and said that had chair, an older television con- high and The thereafter came to police beat her. about the sole. Barker talked apartment. food, get to some told fact that needed banks, utilizing him about food and said came over “one other time”21 Mother try get to a food that she would card Father, children were with when the of food also concerned him. lack she to Father told her that needed leave. it was almost the Fourth Barker because eye in the punched Mother July, and the stores would be closed for running off the stairs. then took down visit, holiday. During Barker not- assault Father said that this was the ed, however, that Father’s bed and the in a citation episode contact that resulted on toddler bed had sheets them. issued Mother. being Q. Injuries AJB.’s July 1 to Father’s P. Barker’s Visit Apartment 1. Barker’s Observation 1, 2008, July reopened On Barker July visit On Barker went back to re- file on Father because the VOA had food, Father, and noticed that brought a new referral his children had ceived any there was not new food. Father and Barker placed been back in care. said just appeared children awak- had she learned concerns when 9:00 or 9:30 ened when she arrived around the children had been returned a.m., dirty diapers.23 and both children had very agitated he was dur- pointed dirty diapers Barker out the ing many previous spoke of her visits and them; change he complied. told Father in a Mother very hostile manner about Barker that Father that A.B. had about CPS. said Barker noticed bruises issues, Barker asked A.B. anger seemed to have a lot so face ear.24 time, were 22. At that Father had moved into the 20. Father said that watch- complex apartment Woodhaven in east Fort ing and could have seen Mother hit television door, Worth. but he her face on the bedroom could guarantee they saw it. not 23. Barker said that the fact that both children dirty diapers they awakened would Although previous Father described the “they surprising, in and itself be not 16, 2008, taking place event as on June it full, very very wet and which tends following appears that the event is the one you quite were on for make feel like that 16, 2008, place that took on June because it sometime.” description police matches the citation. any Barker testified that she did see during bruising July on the children and he said that he faster than happened, what had someone from the national of- fice. Barker asked how he had fallen.25When
fell, ground A.B. down at the looked Barker testified that Father called her a say else. Before Barker anything incident, few July times after the happened, ask Father what had Fa- could Barker told him that she had made a said, him, he ther heard said he “[Y]ou referral to Barker CPS. said the calls fell.” Barker asked Father how A.B. had that appropriate Father made her were fallen, no idea and he said how for the part; verify most wanted to she had bruising relayed A.B. had received the his face CPS that A.B. had stated that he had fallen. Barker said that and ear and that he had struck the denied *35 that, Father continued to call her after but child. Barker told Father that needed she screened her calls and did not answer call his caseworker inform her CPS and his calls. asked if When Father continued very the fall. seemed hesitant to call and harass her over year, the last that not going and told Barker CPS was said, Barker “No. He come the did him. believe office,” VOA but she was not there. Bark- Barker A.B. bruising found on to be er stated that after Father- came to the “very She the chil- upsetting.” stated that twice, they VOA office keeping started just placed dren had been back with Fa- doors locked because his visits alarmed the ther, time, very that it was stressful building. ladies in the bruising that now there was on A.B.’s face. Tammy Testimony Brooks’s
Barker said that it looked like definite handprint on cheek that his Brooks, A.B.’s ear Tammy CPS, who works for very blue. was black and Barker assumed was assigned investigate the referral that pinched July that A.B.’s ear had been and said on regarding receiyed injuries to physical A.B. She and Officer bruising that A.B.’s ear “defi- Steven Osborne went to Father’s home to nitely sleeping print.” If A.B. not a had make sure that the children were safe. fallen, Barker him to expected would injuries, just bruising have had other door, Brooks on the knocked ear. face and Barker believed that opened why it. Father asked she had dangerous the children were environ- come to pigs,” his home “with those refer- ment, so she left make a call CPS to ring to the police. Father called Brooks a report bruising on A.B.26Barker called though “whore” never they even had met both national CPS hotline and local before.27 said Brooks that Father seemed they she thought annoyed CPS office because local that were at his home and get apartment out leave. caseworker could wanted them to visit. 27.Brooks that Father never talked to testified her in a calm manner while was at his loud, abusive, apartment; verbally he was Barker that A.B. limited ver- testified had saying constantly aggressive, constantly “maybe bal on the skills and was three-word although anyone, struck sentences.” attack. And he never glad police she was she had officers with that explained was not Fa- only her. Brooks that she 26. Barker that this was sec- years ther’s caseworker and that Father wanted his ond time in her twelve with the VOA . caseworker, report that she had to abuse. Ms. Cornelius. A.B.’s ing. Brooks noted that ear was Father that she needed to told Brooks he had some linear purple dark that a referral had because see the children said A.B. on his face. Brooks that bruises in, let but Father phoned been really dirty and that she could not see they if had a warrant in. He asked any bruises in the short amount of other they needed to leave his said her in apart- time that Father allowed have one. Brooks they if did not property ment, marks but she did observe dark they not need warrant explained eyes. under A.B.’s children, Father still would to see his A.B. fallen Father told Brooks that had not let her in. Later, off the toddler bed. Father said arrived, Knox of FBSS Fa- When Brian Then, Fa- fell off Father’s bed. A.B. Knox apartment. let him inside his ther version; ther a more detailed he said gave condition reported came out asleep been and had awakened he had that, Brooks. After Brooks children to crying, when he heard A.B.’s and A.B. told that she needed see the told Father him hurt. he had fallen and that it pictures take of them because children and Father said A.B. marks on injuries. reported Knox had eyes getting enough was not *36 child, each held up Father picked him/her sleep that had and A.B. marks on door, said, they’re fíne.” out the and “[S]ee rubbing because was his face on cheeks if did Brooks told Father that not allow the carpet. her to his children so that she could see A.B. to Brooks told Father that needed safe, they make sure that were then she by be a doctor to make sure that he seen court, might and there a go would to be injuries. did not have additional removal. hospital, stating refused to take A.B. to the finally let Brooks inside When going again” that “not to fall for it he was apartment, noted the the Brooks previously because CPS had taken his chil- sparsely was furnished. She apartment hospital. from him at the Brooks dren bedroom, in the a saw red toddler bed told Father that if he would not take the floor, spring box on the and mattress the hospital, children to CPS would re- sink; not dishes in the she did recall see- move them.
ing anything danger that was a to the Ultimately, chil- transported Knox children. asked whether the chil- When Hospital, dren to Cook Children’s and environment, neglected dren in a were him. Brooks Brooks followed said spend that she Brooks said they problem they arrived first much in the home and could not aget time hospital get at the and tried to children sense of it.28 Brooks also said that she doctor; very angry seen Father was apartment tell whether Father’s could not give any information dangerous was a environment. hospital register staff allow them to eventually children. Both were children was wearing Brooks said A.B. some emergency seen in the room. shirt; mismatched shorts and a H.B. had only diaper. Brooks said that they had at the hospital After been more, family pictures whole had an an Brooks took odor not bath- hour only five said that she was outside Father's she was inside for or ten minutes. Brooks three home for about or four hours and that accidental, to clean the children tried H.B. Brooks decided remove A.B. and H.B. from Father baby place had dirt on her. and to wipes thém in foster In care. addition to her not look like she Brooks said ..H.B.did over injuries, concern A.B.’s Brooks said failing to but that chil- thrive29 both case, open history,30 FBSS blank, dren stared looked so Brooks and Father’s behavior31 into her factored might thought hungry. decision to remove the children. bought and Ms. Brooks Cornelius food Blanchard, to blow on food tried Corporal who had arrived at it, hospital kept putting group to cool but A.B. it in his while the exam waiting room for the doctor see eating mouth and it while it hot. was still A.B., escorted out fed, hospital they began After the children were try papers. to serve him with Ms. Corne- other, moving, talking to hugging each attempted lius to serve Father with the each other. removal, notice emergency but Father rapport Brooks tried to establish to sign refused it. He also sign refused by asking the children their names and a medical release and to information form A.B. ages, unresponsive. When placement information, provide and he had bruise pointed Brooks and asked an Corporal altercation with Blanchard.32 out, him A.B. happened, what blurted ultimately doctor released the children fell,” “I After said “[i]t hurt.” A.B. Brooks, and Ms. them placed Cornelius fallen, that he had Brooks heard A.B. tell home, in a foster where Jennifer H. be- fight Fa- Ms. Cornelius about a between came their foster mother. ther Mother. hand A.B. moved his removal, After Brooks received *37 Mother, body pushed and and said Father phone calls and e-mails from Father. and he how she down demonstrated fell Brooks said that somehow had ob- Father and how she was pushed. As he her tained State e-mail address and had loud, telling story, voice the A.B.’s became multiple per day. sent her e-mails At the acting like he was the out scene that trial, time year which was almost a after had witnessed. removal, had to Father continued e- on Based information that re- Brooks mail her with the last e-mail ten dated doctor, ceived from the emergency room days com- before termination trial not injuries who did believe that A.B.’s that e- menced. Brooks said had out” aggressive Father asked Brooks to "check 31. Brooks described Father as "so young doctors saw he was your and so loud and in face” and said that so she would that not times, that realize H.B. did "people had several to come in and tell problem have a failure-to-thrive rather but quiet they going him to to growth just problem that she had a hormone hospital.” him taken out of the said Brooks growing up. like he had when was bit, quieted for a that down little angry then he became when he found .out investigate 30. When Brooks went to the refer- private the doctors had examined H.B.’s ral, prior did not know there was a parts; he said had that she been violated. Missouri; CPS case she found that out investigation. later her men- had report investigation read Brooks from her Missouri, tioned that he was- from Brooks so Corporal suck that Father "told Blanchard to requested they called state and check grabbed his dick and he his crotch and thrust any history. to see if Father had CPS Mis- responded inquiry souri sent it toward him.” to Brooks’s CPS records. history. too to her She young give had was stated Brooks repeatedly mails33 on A.B. multiple injuries saw soft tissue had his that she taken rights, his violated that A.B. had Specifically, pur- she noted children, about wrong had been that she two millim- ple-red bruising approximately son, injured had his petechia— left eyelid eters on his ask Brooks his child. Father bruising his left pinpoint-type small case but instead investigate further —on temporal area right cheek also on the children, taking saying her for blamed eye. Wright Nurse said that next incorrectly. case that she had handled the bruising red on the left A.B. had lines kept repeating said that Father Brooks purple-red bruising of his face and on side amounts, “in massive information same his left ear. A.B. had five-millimeter call and that he “would massive emails” abdomen, left brown bruise his lower back He would back to back to to back. right bruise on his five-millimeter brown just respond keep calling.” Brooks did not buttocks, and configu- lower and some line were not Father’s e-mails because upper thigh. ration abrasions on his Pho- information; it providing new tographs of the bruises A.B. were ad- thing phone, he had said on the same mitted into evidence. already him told over and she Wright opinion re- provided Nurse on.” phone his case had “moved injuries. garding A.B.’s She testified that “unique” be- Brooks described Father injuries face were of all A.B.’s her, calling e-mailing cause he kept equal severity of the amount of by a she had never been contacted necessary force that would have been client before via e-mail. injuries. cause those She said that injuries been to A.B. painful would have Testimony Wright’s 3. Nurse ear, injuries A.B.’s regard With Wright pediatric prac- Donna is a nurse “[Tjhat said, injury an Wright Nurse is nurse examin- titioner a sexual assault only something where has to hit the ear Hospital. er at Cook Children’s She [Sjomething .... struck the child in the Team, child also on CARE which is the ear[,] only thing or he fell one on his on. *38 advocacy evaluation team resource and Wright Nurse said that A.B.’s ear ear.” possible that sees children who have been injuries pinching, could have been from abuse, abuse, or physical sexual victims slapping, twisting pinching. or She both neglect. She testified that saw the to agreed injury that the ear could July 9, they on after A.B. H.B. by parent’s grabbing have been caused a Team. had been referred CARE by the the thumb child ear the inside emergen- Nurse said in the Wright that finger ear the the first outside the ear room, cy A.B. underwent a CAT scan pulling jerking. Wright or Nurse tes- x- injuries his brain to check and had the injury tified that the to ear would have rays body the taken of his entire due to significant a amount of force and required that been the bruises had found. All of agreed that whatever trauma caused the range. came tests back within the normal injury to the of A.B.’s ear had outside Wright performed thorough through Nurse the ear sufficient force bruise A.B. the the court head-to-toe assessment on because back. When trial asked ultimately part 33. The e-mails were not admitted into evi- deleted because her of the dence; were Brooks testified that e-mails case was closed. enough strength whether there inside of To eye. injuries would cause eye, in the make the bruise inside the fingertips toy inside another object of the hand go straight the ear while the rest was have to into the eye. face, making print Wright on Nurse Nurse did not know what caused injury it would Wright require eye answered that A.B.’s socket. She said really that far that there long fingers wrap around was a that the possibility thumb from the hand slap and that it difficult to have that made the mark would be that might eye socket, have much force in to cause reached A.B.’s fingertips bruis- it bruise, was on a plane. darker different Nurse ing. Wright The ear had a did not dispute fallen, that could that A.B. Wright opined Nurse the bruise on but she did not injuries believe A.B.’s the face and on the the bruise ear were occurred from a fall single because age approximately the same based on their injuries were on two planes different of the they color and were in the fact that head. body. same area Wright of the Nurse opined injuries face and ear A.B.’s She said that the bruise A.B.’s but- time, could have been at the same caused tock was of concern because it inwas an eye
but the bruise near his was caused at a protected area by diaper and was a different said that time. She all of the different color than his other bruises^ injuries to A.B.’s ear face had the which indicated had that it occurred at a potential they be severe different time than the other bruises. on his head and could brain trauma. cause Nurse Wright said it that would take a lot get force to a' in a spot bruise covered Wright Nurse that she believed by diaper, but A.B. could have sustained left injuries that the on the side of A.B.’s a bruise on if his bottom he was running face,34 configura- which the linear included diaper around without a on. Nurse tion, were She slap opined marks. Wright could say bruises on the slap print was caused an adult A.B.’s abdomen happened and buttocks because the each length between time; the same only say she could linear marks inconsistent with a they age were about the same and were hand, person child’s who older than the bruises on A.B.’s face. slapped hand, A.B. right had used his/her and that the from the alleged bruise hand Wright “extremely Nurse con- slap approximately less than three cerned” about the bruise A.B.’s abdo- days Wright agreed four old. men Nurse because it is very difficult there was A.B.’s slap one face and that abdomen to bruise from a fall. She said was all down and that that there pinned always a concern about inter- *39 injury by injuries could not have been caused nal pancreas— the liver and —to carpet burn there were no when there is a on the abra- bruise abdomen. sions, just bruises. Wright Nurse said that common acci- injuries regard eye, usually
With to the to A.B.’s dental bruises in children occur on Nurse that if the Wright said someone fell front side of their bodies on boney floor, knees, hands, or object forward on an onto the or prominences his fore- —then’ However, injured, cheeks of would be head —when forehead not fall. A.B. did injuries fading right 34. All of A.B.’s were on the left side that was on cheek. face, exception of his with the of one bruise boney prominences percentile for fiftieth length, on his tenth the not have bruises head Nurse percentile him for circumference. Wright July saw in Nurse if been Wright private said that she had in any not have bruises that A.B. did fact had seen a child who had practice and flag, was a red boney prominences twenty-fifth percentile gone from of where all the compilation it but was percentile tenth about within four that resulted were located bruises months, five would been she have extreme- an acci- Wright’s diagnosis Nurse “not ly required have concerned would A.B. had Wright dent.” Nurse said that if family to back office have come fallen, that would told her that had length weight peri- the child’s checked he had changed diagnosis that odically monitor If the the situation. injuries because all of his non-accidental had in to clinic those child come If not from a fall. injuries single stats, falling Wright Nurse said that she bed, from a toddler Nurse A.B. had fallen follow-up significant appoint- would have a more Wright that it have been said would past ment and would want to see all had to a likely injuries that he would have had growth know whether the decrease boney inju- in addition to the prominence immediately had gradually occurred presented ries he had with. Nurse Wright Nurse said it dropped off. that, opinion, in her the linear Wright said care giver difficult a child’s from a and that probably slap marks were falling child know that was off by could have been caused injuries the ear growth gone chart unless he or she had Wright said that it would not a fall. Nurse child’s pediatrician a visit with the and had for A.B. have said be inconsistent problem. told been fallen, ear, had hurt his and was had however, think that slapped; she Testimony 4. Caseworker’s all the explain injuries scenario would Groomer, Ruth volunteered to Wright prob- he had. Nurse said that the who family’s became caseworker ability by A.B.’s injuries being caused July explanation an about the cause an was than percent. accident less five bruising: of A.B.’s he said that had A.B. Wright performed the same Nurse fallen. told Groomer that he had head-to-toe examination on H.B. H.B. walking the children had been down the pale thigh on her left brown bruise A.B. fallen gate street and that on a three centime- approximately four rail.35 Father told Groomer that he never ters. was not of be- This bruise concern slapped A-.B. no cause there were no other bruises and injuries. other Testimony in the rec- Wright hospital Nurse saw July testified that on at about hospitalized H.B. nine ords that had been p.m., walking 7:00 A.B. next to before for failure to thrive. Nurse months sitting stroller that H.B. was when he Wright surprised H.B. extremely tripped gate fell over a apart- previously diagnosed been as “failure ear complex ment and hit his and his chunky, to thrive” because “she was so ground. cheek Father said *40 was active” was in playful, and because she he swelling there was no checked percentile for the went seventy-fifth weight, the A.B. before to bed. Branum, manager apart- large railing gate
35. Dorene that in the front there was lived, apartment complex. complex where Father testified ment They sleep went about 9:00 p.m. 8:00 or Around 8:00 day the same that Father, Barker had an or visited p.m., and Father awoke hour two Brooks came to apartment, ear,” along police with the crying, “My ear. My later A.B.’s others. children were in the liv- he slapping against was his hand room, ing and Brooks was outside the door metal his bed. Father headboard of When when Father called her a “whore.” Fa- said, happened, asked A.B. what had he ther very said that he sorry for his “My My My ear. ear. ear.” Father actions. Father described his attitude thought that A.B. had been jumping police when the “iffy.” arrived as He said bed and had fallen down and hit his had at, that he was not cursing at, screaming ear on the headboard because he was at, hollering threatening, assaulting standing carpet on the head- slapping the anyone; just he was get trying point his board when up. Father woke Father did across A.B. that did not need to go to the any bruising not see on A.B. time. at that hospital simply because he had fallen. Fa- Father said it is possible that that A.B. ther that said he did anything not have injuries sustained his from both fall hide but scared that CPS was not gate over the incident with the going to believe anything that he said headboard. Father said that con- he was about where the injury came from. He cerned injury about A.B.’s he said he finally gotten his children knew that it life-threatening. was not back and felt like his life was where it be, needed to so he of losing was afraid his Father and the children again. were sleeping when Barker arrived the said Father that he went to Cook Chil- morning. thought next Barker there was Hospital when dren’s Brooks threatened to off; dirt on it A.B.’s ear tried to rub remove the children if he not did take A.B. she then pointed bruising out on A.B.’s hospital to the to be examined. He ex- ear while changing diaper. Father was plained that when he to sign refused forms Barker what asked A.B. had happened, hospital, so because he and he said that he had fallen.36 Barker thought CPS for the pay should visit press did not for further A.B. details. they had it. requested said he told Barker Testimony story whole A.B.’s Mother’s slapping about headboard with his hand but that must she times, A.B. told Mother numerous left testimony. have that out her Fa- “[D]addy my tried to break ear.”37 Moth- ther believed that there was an injury er said A.B. did provide additional only one side of A.B.’s ear and Bark- details after he sáid that Father had tried rubbing may er’s A.B.’s ear caused ear, persistent break his but he was bruising to ear the other side of his Mother A.B. story. believed and said up hospital. at the show Father said that engaged similar behavior never slapped her, A.B. and never pulled but Mother later said that in all Father, tugged on his ear. years A.B.’s statement verbal,” W., “pretty A.B. said that Jennifer and Mother talked to Father speak but he did in full sentences. having training potty about trouble A.B. How- ever, never take saw Father A.B. potty training 37. Mother the midst was in ear bathroom. voluntarily placed A.B. when she him with *41 632 Requirements Plan only 1. Service his was the incident
regarding ear in of which son aware that she above, noted Groomer became As may injured have Father complained that in July on case 2008 while caseworker this him. in the Tarrant Father was incarcerated a County developed Jail. Groomer service Injury Charged to a
R. Father him required Father that to at- plan for Child classes, parenting anger counseling, tend July a detective on Father talked to classes, and a batterers inter- management child, injury to a charged with plan Father’s service program.39 vention in seventy-five days jail July from spent undergo psychiatric required also him 2008. Father’s bond September evaluation, psychological consultation $10,000. asked for a at Father initially set Ryan,40 drug Dr. and a and alcohol Parnell bond, and “the personal recognizance assessment.41 mad, he doubled guess, got I judge, developed plan After Groomer a service grand my arraignment bond Father, jail for she to visit him at the went making impossible it for grand 26, 2008; gave him the service August me to bond out.” During it with him. plan; and went over understanding was that if he meeting, Father called Groomer a spend he two plead guilty, would not already her that he had “bitch” told So years jail trial. Father pending FBSS, that he would done services with judicial that he had signed a confession services, he did not participate injured guilty plea A.B. and entered services, against him charges need he missed his children knew going dropped,42 be would any have only way hope he would that the back, be and that he getting would getting children back move to Missouri to live with his would working plead guilty and to start on his re- as soon as his children were mother plan. service him. turned to Father said that plan Round until he had sign S. Father’s Second Ser- service attorney. to his talked vices38 completed year Although Department though Father had one the did not move for before, parental rights parent- of Father's based termination because Father had attended any complete plan, his service failure to completed ing classes and had other services 161.001(l)(O), §Ann. we see Tex. Fam.Code Department, which could made include discussion the services psychological consultation the outcome of the endanger- worked because it is relevant to the previous different from the one. endangering ing conduct environment grounds Department pleaded in its that the inclusion of the Groomer testified petition parental rights. to terminate Father’s plan drug-free in a service does not education drug necessarily parent that the has a indicate 39. Groomer determined that needed case, problem. In this Groomer testified that participate in batterer’s intervention based drugs, had no that Father used file, evidence previous on the case which included "very though there erratic was evidence of investigation A.B. told CPS that Mother, had knocked down had hit behaviors.” her, cry. and had made her Groomer was charged with not aware that Mother had been appealing his 42. Father said that he was con- domestic violence. it injury to a child and that would viction be overturned. requested complete 40. Groomer consultation, psychological even another *42 Delay pline; holding, comforting, cuddling Plan 2. Service children; children; playing with the Testimony Groomer’s a. cared; showing the children that he watch- hearing on court held a status The trial ing children; timing television with 30, 2008, Groomer at which September children; feeding bathing Father had been released reported that dealing parent. with the stress of a being day was not in jail previous Father the parenting said that classes hearing had not attendance spank taught him not to but to the fact that despite contacted Groomer put them corner and talk them to insthe plan. his service phone number was on why see if in they they knew were Father acknowledged had Groomer corner; they they said once were half time on his lost two and months of sorry they wrong, Fa- what done jail.43 while he was in plan service ther them could let out of the corner. November, that he In Father said initially Father that he did not admitted plan. said that lost his service Groomer classes, parenting want to take the but he copies Father with provided she several they later realized that were beneficial and copies mailed two plan; his service helped said him He a lot. said him and hand-delivered one December the, parenting instructor listened to over the services with him talk, when she went parents, them gave a chance stating through again. Father continued just great lady.” “was all around a that he not work his any December 2008 He personality did not have conflicts grade with her. made a good services. Father his test of com- and received certificate Testimony b. Father’s pletion. Father said Groomer’s statement 4.Anger Management and Individual that he not contact her until December did Counseling Classes incorrect; that within Father said being jail, he had Testimony week of released from a. Burdick’s getting about his ser- contacted Groomer social Constance clinical ^Burdick, vices in testified that he place. worker Charities Diocese of with Catholic twenty had called Groomer fifteen to times Worth, Fort that Father came to in October 2008 and had left voice'mails anger management her for classes hearing no response. but received At punctual therapy. individual attorney demanded January management In anger to all ten sessions. ' that Father’s services be initiated and out, class, “Are the first Father blurted moved a little faster pushed, and CPS you saying write a letter I qualified to hearing scheduling parenting after that anger problem get don’t have me an anger classes. management classes and he did out of this class?” said that there, not want to Parenting 3. Classes an and that out anger problem, he wanted frequently part parenting Father said the class. Father thereafter nutrition; saying write classes, asked Burdick to letters he learned about disci- said that the on Father's Groomer services August plan actually offered back *43 A.B.),45 happened what and would anger problem. Dining an had he did not have not Father not accept redirection. was classes, about what had Father talked cooperative during individual counsel- A.B., Burdick him with and told happened sessions; his ing getting total focus was on until individual that he needed wait stating he Burdick to write letters that did topic. to discuss that Father counseling anger not an that not problem, have he did anger management also announced child, not harm his that he did need to bipolar he had ADHD and disor- class that his counseling, that children should However, never Father was asked der.44 to him. told be returned When Burdick class, and his behavior in the to leave a not Father that she could write a letter that was inappropriate class not so he was witness, did about an event that she not complete the class. unable to agitated and Father became said that he impulse that Father has Burdick stated was he did hurt going prove not he wants to talk control issues—when A.B. took Father at his Burdick word stop talking he not something, about does he A.B. had not hit interrupt will others when about it and he Father told Burdick that and Mother talking. Burdick believed that are along there been get not and that had anger manage- be in the Father needed to them.46 domestic violence between He de- agitated he was ment classes because he scribed one incident that occurred when intrusive, interrupting people. other Fa- back, Mother’s twisted arm behind he angry, very was was ther’s affect happened injured other when Mother anger his tense. Father’s stemmed from Father on June 2008.47 police, physician feeling that were with them when this incident of do- CPS, Hospital, and the Cook Children’s re- mestic violence occurred. Father against him. In courts all had vendetta peatedly po- asked Burdick to obtain the any opinion, Father did have Burdick’s lice from reports the domestic violence changes was not behavioral able incidents, but she did not. Burdick be- he, learned in the an- articulate had what Father lieved that should called 911 ger class. management trying instead of to remove Mother premises. Burdick said that Father individual When Burdick conducted acknowledged he was never an abuser Father, with shé did not see counseling A.B. Mother or him use the skills that he learned anger management He was an- class. actively told that he Father Burdick was gry during most of the individual counsel- programs involved in all and that CPS loud, sessions; he was was focused on ing doing everything wanted CPS (i.e., do, him including getting what to talk about about medication. he wanted Mother, paperwork counseling gave 46. 44. Burdick some In Burdick’s Father diagnosed showing with a been verbally Mother said Father personality disorder. physically violent toward her. said that he had taken the two Although told Burdick testified way on the children to the store and that back her that he received a ticket as result apartment complex, tripped A.B. had into the incident, record not bear June 16 does something and had fallen over hit above, As set forth Mother received this out. side of head. Father told her that he had his for the 2008 incident. citation June pleaded injury guilty to to A.B. because he attorney and the was coerced courts. Burdick, however, say about CPS’s phone could whether failure return his medication, only taking calls and their unwillingness to sit down her that he wanted repeatedly told and have a discussion him. He said *44 get to Burdick off his medication. recom- he agitated became when he was told battery Father a full mended that plan family that the reunification and psychological testing to rule out schizoaf- then it was changed termination. disorder, but fective hé said that he would got said that he with along Father Bur- further-testing. undergo not dick for the part. most He said that there Burdick believed that Father’s involve- major confrontations, no “a just little ment when was a with he child had CPS beginning.” discussion at the Father ulti- his with bearing, on current frustrations mately earned a certificate completing trying get CPS in his children back. anger management class. Burdick that Father was driven to agreed However, began having Father prob- get his children back said that not and lems with Burdick the individual coun- anger a vice. Burdick felt that Father had seling sessions. In counseling, Father was problems control based on behavior he A.B., alleged confronted about his abuse of felt in- exhibited and that he had been and presumption there was a that he had volved in domestic violence. done “these things.” Father believed that complained Father to Catholic Charities he already Burdick decided that was a not that he Burdick were able to work batterer, child abuser and a he felt re- together, ultimately, Burdick was wall put up like that between them and moved from case. give did not him a chance to with bond counselor.48 So Father asked for an- CPS Testimony b. Father’s counselor, other said he had to initially Father said did Ultimately, remain with Burdick. Ms. manage- anger think that he needed the with Hart Catholic Charities allowed him lot, ment but that he learn a such class to switch. temper, as how to his how deal control others, well posi- with how to communicate Drug Testing 5. tively, aggressive how to get other he people. When Father was Father said that has touched asked never explain he why tendency drugs positive drug still had a to be and has never had a anger He taking explained confrontational after test. that one time he class, said, “[TJhey’re management past neighbors he some who were walked smoking making marijuana me look out to be little bit more and that someone told actually manager worse than it is.” He said that he that he was smok- apartment gets every agitated ing marijuana; apartment manager now and then Cornelius, he doing everything to show CPS then called Ms. who can sent re-- a drug passed he deserves to have his children to take test. Father him, only willing drug turned to but CPS is not test and that was alle- said give him complained gation drug a chance. Father use. thing seling, gotten every- Father said that one he could have but he felt like plan done under better his service thing that he could out services. have better interaction with Burdick in coun- instance, April, Father came to a For
6. Visitations agitated, walked very visit while he was Testimony Groomer’s a. Groomer, ranting started straight toward first visitation the children finger in her shaking raving jail released from occurred arms, after he was face, and screamed at her. waved his during the Typically pro- October and the said Groomer visits, indi- lied him about picked up gram director had CPS’s plan for reunification.49- Groomer said very á ride gave them short vidually and screaming, over her Father stood maybe trip one around shoulders — *45 down, not calm himself not sit and would he sat then the for each child—and room security guard after she and the even tired. he said down because chil- that he calm down. The requested aloud, he did Father read a book but then they retreated to corner because dren to him. The foster gather not his children him! appeared to be afraid of Groomer children, Fa- lunch for the and mom sent re- for the children to be became fearful he did brought ther them a snack because to Father decided that CPS turned and money to always provide “not have the parental rights. terminate Father’s should Groomer [everything his children.” Father’s visitation for Groomer canceled okay.” visits said that the “went day, give make-up did not that and CPS case ob- was the aid who Val Trammel that her seven visit. Groomer testified visits, of Father’s and Groom- served most CPS, years a half with she had never and five. approximately er all but observed anyone upset Father He as was. seen extremely that it was rare Groomer said so that it her fearful or upset made parent’s observe a visits people two anxious. visitation is agreed supervised and photos the Groomer testified that visitation, the optimum type the but cuddling at trial of Father were introduced observe judge people ordered two posed the at visits were with children the Additionally, the visits visits. Father’s request. at Groomer said Ben place to take at the were ordered the at prompted Father children smile so that there would be Street location during and took their picture him then guard. believed security Groomer say Groomer that all visitation. could “absolutely be- appropriate” condition was prompted were be- “happy pictures” they cause had needed time several times cause' the children had a wonderful cars, they on little guard playing intervene. when were plan family adoption.” tive unrelated At the end It difficult determine when the is family termi- changed February permanency from reunification to confer- recall ence, nation Groomer could not supervisor district announced that she, supervisor, program goal plan family was to work a dual — made the decision to termi- director seek by would be worked side side reunification rights. parental Groomer nation of Father’s with Groomer was asked termination. When 30, 2008, September status said that on at the happened whether her decision to terminate change hearing, they make decided to April lobby, the incident in CPS after La- family reunification to termination. said, "Yes, on that due to his behav- she date ter, read an e-mail that had sent Groomer she However, iors.” Groomer also testified 29, 2009, January in which said that terminating Father’s CPS had talked about goal permanency family reu- current "[t]he rights prior April episode parental nification, I have this but Nora and discussed Ben office. Street changed feel it to alterna- we should be they said that not interact- Groomer were Father said that the visits when Tram- supervised mel solo went their Father when much better ing with than those when Groomer was present on the little also be- playing cars. quietly cause Trammel observed. Father Testimony b. Father’s said that Groomer wrote on notepad continuously during the visits that she su- usually said that he arrived pervised things during verbalize early a half visits about hour for his visit, as, such kissing “[H]e’s not them him up that the children would run enough.” Father had a problem with leg hug his him. Father said grab standing Groomer’s over him his during them, play toys that he would read to visits, him making feel like he was a crimi- them, papers and toss Frisbees to like nal and a father. bad Father said if said that them. his there was verbal friction between ride hugged and kissed him and would Groomer it was started her and would shoulders. said only last a few seconds because he would diapers and fed children at changed *46 “chill out ‘cause didn’t want [he] kids [his] visit, though fed them every sometimes he to see Father that.” testified at- that he parents packed food that the foster had tempted was not successful in estab- is on stamps. food Father said he working lishing relationship a with Groom- that he did whatever he could to show his er. that he children loved them and back, telling them including wanted them 7. Home Visits trying get that he was his to them hardest said before attempting Groomer back. Friday, 20, 2009, home visit on March asked if would be Father Groomer he p.m., 4:00 she- called Father’s be- attorney to take the allowed children out request permission cause she wanted .to to playground during his visits instead of go into Father’s home to see if he had stay them Father having the office. adequate accommodations for his children. throughout majority asked Groomer the wanting get Groomer denied to incrimina- finally the visits and had to Groom- go ting information Father and said that supervisor to get approval er’s take she did a camera with not have her. his children to the Father playground. went to When Groomer Father’s home was able to take the children outside two perform unannounced home visit by or three times until A.B. was bitten environment, on his she took two check. home, then bug at the foster CPS along with caseworkers her. Groomer to allow Father the chil- refused to take door, knocked on the and Father opened dren outside. he the door a small crack and said that said that description Father Groomer’s call attorney. would have to his Father children were lifeless flat door, when he very angry opened during his visits was at all.” “not true extremely shaking and his hands were said pictures showing Father that the his Father spoke hard. After with his attor- with smiles on accu- their faces ney, said that attorney Father his had rately depicted during their his in, demeanor them come refused to let and so Father Father said went visits. that his visits day. in that not let Groomer While cracked, very well and that cried and his children the door Groomer an noted go heavy home with smell of kind extremely wanted him. smoke and a smell; not believe that and Groomer did grams, said that musky aof any benefit from Father had demonstrated cigar.” kind of a little smokes “some to him. provided that CPS In the services Compliance not opinion, Plan Father did make a 8. Service Groomer’s change a reasonable time within positive Testimony a. Groomer’s par- adequate and he did .have period, . Father’s services said that Groomer enting young care for his two skills January immediately on up set children. services. agreed to do his when Testimony b. Father’s classes completed parenting certificate, underwent received completed he had Father testified that as ordered consultation psychological class, psychological con- parenting court, man- part anger took in an class, trial sult, anger management a certifi- received program sessions, agement made all his counseling and had every visi- cate, counseling, made except jail. attended he was visits children, and maintained tation Father’s Probation T. throughout pen- residence the same Testimony Although case. Groomer dency of the 1. Oldham’s drug or alco- no indication Oldham, probation offi- Samuel issues, alcohol drug she included a hol cer, assigned work plan. Father did assessment mental people cases for illnesses. in the and alcohol assess- participate drug *47 31, December He met with Father on psychi- also did not for a go Father ment. 2008, previously and noted Father had evaluation, even Groomer had though atric bipolar and that his diagnosed been as so given Father number MHMR by had two diagnosis sepa- been sustained no undergo evaluation at that he could performed psychological evaluations rate trial, had the time of Groomer charge. At Ryan. by Dr. Parnell any stating information received not Father, two-year pro a serving who was completed inter- a batterers Father bation, required perform was to hours class, prior but the weeks during vention service,50 to community report of trial, he was Father told Groomer that officer at least once month or probation batterers intervention class or attending a by by or as directed the trial court Old- whether to attend. When asked going ham, monthly pay probation and to a $25 leave with the wanted to the trial court proba Oldham testified that Father’s fee. that Father was not active impression health tion had five additional mental con of, all of his services taken care getting (1) psychiatric submit to a ditions: and/or it impres- that was not an Groomer said evaluation, which Father psychological sion; agreed a fact. Groomer later (2) it was did; fully in participate attend and were took all the that Father services by the counseling or classes as directed offered, case,' enough. Oldham, in this it including Project court or trial n any completed, behavioral he Neighborhood, Groomer did see which Safe (3) evaluation; improvement in Father’s “char- a'substance abuse take changes or by as the treat pro- prescribed all medication completion acter” after the proceedings CPS effect community were ture of the Father’s hours service having na- on Father. initially deferred of the stressful (4) use, abstain provider;51 ment from the Father admitted that he did not consult with physician prior possession, consumption altering of alcoholic his medi cation reported schedule and has beverages testing alcohol since tak submit for. ing Oldham, his medicine use, prescribed. as by which complied sub however, probation admitted that the de urinalyses mitting to four that were all partment does not have the resources to (5) negative; assigned be to a mental test taking whether Father is the medicine officer, health which was completed. throwing away pills. After the May There was a supplemental condition issued, 6 citation was Oldham noticed harmful/injurious there no contact with swings 21, mood On May Father. Fa only adult-super children and that he have ther spoke acting called and supervisor vised contact with children.52 Kelly Pierce and expressed various frus Early probation, on Father’s during her; trations agitated he sounded very failing violated terms to submit to a and angry. days Five later when Father assessment, vio- substance abuse but that called and asked happen what would to his up lation was cleared as a misunder- later community service once his CPS case was standing scheduling. based on Father vio- of, thought taken care Oldham 'that Father 3, 2009, probation April lated his depressed sounded because was brief in he failed for his report scheduled his answers and used subdued voice. monthly appointment. claimed made Oldham four unannounced visits to appointment that his was at a different home. On Father’s the two visits when he time, but said that Oldham inside,54 February went May been issued written instructions that con- apartment very messy time. tained the correct Father was con- and cluttered. Oldham noted that Fa tacted on and he April reported very apartment strongly ther’s smelled scheduled later in the month. smoke, tobacco there were a large On May Father received a citation kitchen, dirty number of dishes' in failing to pre take medication as refrigerator did not have much food *48 visit, During scribed. a home saw Oldham it, that the the baby child’s bed and bed that Father been medi taking had not his very poor both to be in appeared repair, cine, explained and Father that he had baby that padded the bed did not have a taking every day been his medicine other bottom the metal bar support so was clear like ly because he did not the side effects.53 as a bottom hump lining, visible the prescribed milligrams skip any pills. 51. Father was ten said not 53. Father that he did medication, Ability, psychotropic a on Febru- psychotropic He said that the medication 12,- ary 2009. Father told Groomer that he “very strong a hand causes tick and a aver- milligrams taking Ability. was three sion to He did not want to take medication.” medicine, the but he took it because he loves unsupervised 52. Father wanted visitation his children and wants them back. children, with the and Oldham told him to attorney have his file motion for modifica- 54. Oldham said that he was not denied access tion. that Oldham said he had no to reason times; two Father the other one time was not agree to the recommendation for Father time, home, and the other Oldham had ac- unsupervised have contact with the children companied transportation officer who based on that the behavior he had observed. up picked Depart- him to and took Oldham frequently noticed that Father be- ment. angry appeared came what and had to be swings. mood by information held Oldham. very messy with access was that the bedroom questions that floor, did not Oldham Groomer’s that bed believed clothes on the it, safety have sheets on for her and the appropriate and did not were have frame stretched across gate safety and that a was of others. that
entry kitchen. Oldham stated called inform April On Groomer in a similar Father’s apartment he found Fa- director sent Oldham that CPS in. that he went the second time condition telling an e-mail him was ther said that the opinion, his Oldham lay In a doctor who had examined calling cease not suitable home environment diaper child in the month his earlier small children. repeated- said that Father rash. Groomer some- that Father “acts as Oldham said and that the ly called the doctor’s office be on probation, not want to one who does felt threatened. personnel doctor’s care of very taking hard at and works doctor had called Groomer said “very can described as his ease” and be her police reported was a proactive.” Oldham said there trespassing be if he arrested for of all his contacts fifty-page printout doctor’s Father sent came office. Father, approxi- Oldham guessed stating, supervisor an e-mail Groomer’s mately seventy-five of the contacts percent you’ve been misinformed sorry “I’m which Father had phone were calls in I regarding calls to the doctor’s office. community his service asked about any their office at time.” called any about whether Oldham received verify Oldham not able to Groomer’s talked communication from CPS. Father concerns. case, Oldham about CPS length to e-mailed Oldham May On Groomer poor fears relation- including his news that Father had been confront- ship with the CPS workers. identity charge theft ed over but had con- Oldham testified that Groomer prosecuted could because of approximately three times a tacted him identity manner in which victim of the by month. The initial contact made theft handled the situation. were telephone, subsequent contacts May there e-mails and let- On writing so that required to be made alleg- ters received Oldham CPS approve disapprove trial court could had contacted the chil- ing March for information. On requests parents. dren’s foster 10, 2009, information requested Groomer *49 that if finished all of Oldham said Father of home concerning the condition Father’s services, fee community maintained his his visits, during home Father’s attitude compli- payments, general and maintained visits, during any chil- behavior the home conditions, probation ance with his home, in of dren observed the results mandatory early dis- eligible for evaluation, psychiatric any medications September 2009.55 If Fa- missal review in Father, anyone prescribed to who community his service before Father, ther finished of and Father’s feel- been fearful then, early hearing could obtain an staff. On March ings about CPS release, through attorney. signed giving Groomer an release, testimony tory September later in in 55. Oldham reiterated his review, up not a manda- expressed Oldham some concerns about many When asked how times she had stability Father’s mental if he did not be- called Oldham in an effort to provide infor- mation proactive psychiatric come more with his on Father that would result revocation of probation treatment. Oldham his specifically noticed and that would go “cause him to high jail aggression during years,” levels Father’s ten Groomer said that she never visits; knew that phone calls and office most of it could cause Father go jail for ten aggression was directed agencies, toward years. but some was directed toward individuals. Oldham,
Father never threatened but Fa- U. Children’s Lives with Foster Par- ther had agitated become with Oldham and ents him of accused unethical behavior. 1. The Initial Foster Parents
Based on Oldham’s training, experience, Father, and interaction with Oldham be- Jennifer H. testified that A.B. and H.B. that Father physical lieved could be a dan- were brought to her CPS near midnight ger to others. 8, 2008, July and remained in her home until February 2009. When the chil- Testimony
2. Groomer’s arrived, dren they pajamas, had on their While this case was pending, Groomer hair was matted and washed, had not been asked the trial court for permission to they dirty very were much in need of sign bath, have Father a release so that she their fingernails long could talk probation dirty, to his officer. they Groom- clothes; had no additional er called Father’s it probation officer five took two baths the next morning to get times to find out drug about tests them clean. While Jennifer H. was bath- A.B., ing whether Father was in he told her compliance with his that “his daddy tried off,” probation rip terms. Groomer his ear read on the and Jennifer H. noted record the that the portions unredacted inside A.B.’s ear Respon- was black and blue, finger-sized dent’s he had Exhibit an e-mail bruises on from her to both Oldham, cheeks, sides of his and one of his requested eyes which she had infor- bruised. Jennifer mation H. said that spoke on Father. A.B. to her very clearly56 reported and that she Groomer admitted that provided she had his statement to CPS. Oldham, information telling him that Jennifer H. said that language H.B.’s girlfriend Springtown had a was inappropriate for a two-year-oid child. traveling that he was county out of the H., yell She would at Jennifer “[W]ould visit her. Groomer agreed that she did somebody bottle,” go get me a damn and if not have personal knowledge of any of her, bumped someone say, she would “[G]- these purported facts. Groomer also con- damn you.” Jennifer H. said that tacted Oldham to tell him that Father had told H.B. that her language was inappro- improperly e-mailed parents. the foster priate, and she gradually stopped using Groomer admitted that she had also called profanity. Oldham to talk about claiming
children on his income tax return and to Jennifer H. observed that the children inform Oldham that she had been told fed, very were fearful of not being and Father was involved in some kind of fraud. H.B. grossly overate when she first ar- Although verbal, A.B. was fully three and a half when he was able let know what her he came to Jennifer H.'s house and was not his needs were and unhappy. when he was house, come from while A.B. would hide children would home the visits
rived in their “wired,” times, they at other and wanted eat. in the corner and food and stand sleep pen. in the crib or For play in- H. an Additionally, Jennifer recollected instance, visits, after some A.B. went im- involving H.B. International cident mediately play pen crib (IHOP). Around Pancakes House of a bottle and asked Jennifer H. to grabbed commer- the children saw a Thanksgiving, up put fill it and then asked to be in the IHOP, H. and Jennifer pancakes cial for at in the crib. A.B. laid crib watched them that she take told the children would SpongeBob long on the for as television arrived the restau- they there. When H. she would let him. Jennifer said that rant, H.’s hus- packed, it was so Jennifer like days A.B. did not act that on other they go band the decision would made the week. location. A.B. became to another IHOP experienced nightmares A.B. also hysterical, physical- and Jennifer H. had to “[N]o, out, cry daddy, no.” Jennifer in his tried to ly put him car seat. A.B. room, in his wake go up, H. would him open get window and out and him, down, put him hold calm him kept H. uncontrollably. Jennifer crying A.B.’s nightmares happened back bed. they just going A.B. that reassuring were night on the of the visit and sometimes the they IHOP. into pulled to another When night after the visit and continued sev- IHOP, husband the second Jennifer H.’s couple A times his during eral months. A.B. that he was to be able going assured fell nightmares, A.B. out of his bed until pancakes, and he “kind of calmed eat by body H. remedied placing Jennifer ... went in and ... A.B. down and ate.” bed. pillows around his all of H.’s ate all of his food and Jennifer telling story After A.B.’s initial very food and was embarrassed during bath about ear his first at Jen- way acted. he had house, often, every nifer H.’s so A.B. would visits Before the children’s repeat statement. One morning started,57 Jennifer H. said waiting Jennifer H. and A.B. were for the They They were great. happy. “were bus, cry school A.B. started to and said played They with the other children. were that his ear hurt. When Jennifer H. asked know, well; they they kids. You ate loved it, if A.B. or if he had bumped had fallen go shopping; they good. loved to look A.B. said his dad tried it rip know, nice bought You them a lot of we— off. they they just And were clothes. were— time, Jennifer H. said that around that happy.” Jennifer H. said the children she and her husband made the decision to home, they very comfortable go” “let of A.B. H.B. Jennifer H. had beds, slept through night twin H.B., initially A.B. adopt wanted sippy cups. used making but Father had started accusations started, After the visits with Father against her.58 Jennifer H. said that her rapid Jennifer H. noticed “a real decline investigated times home three for sex H. physical their behavior.” Jennifer said that ual abuse and abuse. The first July through September investigators 57. From the end 58. Jennifer H. said that the told 2008, Father with the anonymous did not visits her that made refer- jail. children because he was in rals. jail. began when he was visits released *51 in allegation regard that Father made was The third referral was for redness A.B.’s private diaper During to bad on H.B. area. rashes said that he Father felt like the referrals that time, he made were H.B. had the flu having and was a lot made in confidence under law. state movements, diaper bowel so the rash control. allega was hard to The second 3. The Current Foster Parents may tion something was that have hap Greg, A.B. and H.B.’s current foster pened sexually to the children. When Fa parent, testified at trial that the children ther attempted change diaper59 A.B.’s had been in his home for approximately resisted, at a visit and he Father made the four During . couple the first months.. proved accusation that A.B.’s reaction days home, that A.B. was in their he made Jennifer H. was him. A molesting CPS statement, “Daddy my tried to break caseworker examined A.B. and determined ear,” statement, and another “Daddy tried fíne. allegation The third pull my off.” ear involved a H.B. bite. was bitten Jenni Greg said that A.B. would “hit a wall daughter fer H.’s while was in H.B. emotionally, physically” about mid-after- home. Father wanted a doctor to look at noon and very easily would become agitat- face, the bite marks on H.B.’s Groomer ed at thing the smallest and would throw a told Jennifer H. that not necessary. tantrum. said Greg that A.B. would re- Thus, ruled allegations. CPS out all of the gress episodes and that the usually would self-injury involve or an injury to his wife Allegations 2. Father’s Julie, H.B., Julie. A.B. Greg, struck Against Jennifer H.. with the last time that he hit Julie occur- ring April attempted 2009. A.B. also Father testified at regarding trial his arm, bite Greg’s but he stopped himself allegations version of the made actually before he bit Greg. against Jennifer H. He said the first Greg said that are now referral for an allegation of sexual doing very well his home. A.B. has a abuse based visit when went to likes, lot of superhero toys that he H.B. change AB.’s diaper, pushed and A.B. him likes to play with food and cooking-type away; said that A.B. had never toys, and play both children like before, done and it alarmed Father. Greg blocks. said that have transi- Father asked Groomer to look into the tioned the children from SpongeBob to sexual allegations. abuse more educational shows on television and The next referral purple, golf- positive involved a seems to have' had a effect on their developmental skills. ball sized bruise on H.B.’s face below her eye. left asked Groomer have a Greg he had concerns it, physician look and Groomer said that giving about address name and the she parents’ story— believed foster employer pattern because there was daughter that their had bitten H.B.—and in this case where information reached physician that there was no need Father, to have then used the informa- look at it. tion to Greg harass or the children’s care- toilet, just 59. Jennifer H. said pull-ups. that A.B. a fear of on the she let so him wear bathrooms; he put resist when him *52 jail be- right he released from pediatri- after contacted givers. Father have a bit of trying “was little cause he and took the children to Greg that cian nev- fun.” said that the children were He e-mail, In the Greg. had also e-mailed they er to the website exposed number and phone Greg received were in foster care. account, Greg used to see which his Metro on the inter- anything posted if Father had V. Father’s Environment Google search and Greg performed net. Testimony 1. Mother’s up had set that Father found websites found, he what Based on apartment the internet. that Father’s Mother said un- dogs60 he has about the and that it was Greg said that concerns smelled like did believe Mother therefore not safety they if are returned to clean. children’s apartment appropriate that Father’s Father. However, Mother said for children. Allegations Regarding the 4. Father’s that had beds for children Father any Foster Parents His not concerns about Current that did Fa- Testimony taken care of at Responses Greg’s being the children ther’s home. Greg, Fa- While the children were during visit that H.B. had ther noticed Testimony 2. Father’s above her but- fingertip contusions three was liv- Father testified at trial he investigator to asked the tocks. Father apartment at the ing in a one-bedroom if injuries see were look at the Apartments, he had Cherry Hill where intentional. accidental or lived June 2008. Father said since e- Greg’s that he took Father admitted kept clean and well apartment was discovery in this from the mail address refriger- always food there to his accusations that responded suit Fa- lived with ator. When children returned to him after the children were living ther, slept playpen in her in the H.B. dirty diapers diaper visits living room,61 slept A.B. in his bed in the rashes; said it was not his room, slept in the master bed- Mother’s visits followed his. fault because if the children room. Father said he contact Father said him, attempt he would returned Greg the children to. pediatrician that took in- part-time job obtain a increase then to a two-bedroom upgrade come and he had posted Father admitted that he let the apartment. He said that would an family pictures of his children on inter- have the bedrooms and that two finding that he used for net website sleep living in the room. Father was aware dating. friends and Father’s Finances W. websites, who but he looked Father also hoped that it was adults. case, re- Father has Throughout photos he had nude posted admitted that monthly He receives a disabili- ceived SSI. a different internet website of himself on check ty monthly for and a SSI check $692 not at appropriate and that it was all If the children were returned $2. him, A.B. would receive a check for pictures He posted $46 him to do that. buy a waiting to dogs said that he was said that Father 60. Mother getting H.B. until he was sure he was bed for apartment. lived inside his children back. *53 fed, clothed, Father were Security. his Social said that and clean and that very in Mother and Father currently stamps good food took care he receives $200 their children. per and that he would receive $360 $400 if the were returned to month Gordon said during Mother and him. separation, Father’s Gordon had contact with Mother about three or four times a children,
Father if he had the said that month. Mother called Gordon and asked monthly would expenses his include $345 for phone number so that she rent, electricity, for for for cell $60 $61 case, could talk to him about this (to phone service contact with his keep Gordon said give that she could not it to officer), water, probation $36 $42 $20 her. Gordon called Father and told him diapers clothing for the to $30 about Mother’s call. children, transportation.62 for bus $25 Gordon said that knew of she about five groceries, except cigarettes, All of the his children, times when Father watched the bought using be food stamps. would but he did not them keep while Mother expenses, such When asked about other worked; Mother’s sister or a friend name entertainment, said that he Allison watched the children. trying money to save that if his children so him, buy returned to he could them Apartment Complex Manager’s things they needed. Testimony the reason he was said that Branum, Dorene manager from the currently working was because the CPS Cherry Hill Apartments, testified that she up case had taken so much of his time that knew Father came go get there was no time to a full-time office “all the time” children and he can earn job. said that $900 visited with the staff. office Branum said losing month without his SSI per and that that she saw Father with the children two going he is to work full-time after he com- or three times a week and that the ladies school; pletes going technical he is to be a apartment complex’s in the office would computer expects freelance technician and watch the children while he would run twenty hour, make fifteen to dollars an upstairs put away groceries. Branum possibly more. that Father protective said of his chil- Testimony X. Character dren and leave just would not them with anyone. always good Father was with his Testimony 1. Friend’s children; he played with them and talked them, and they very happy. seemed Diana Michelle Gordon that she Branum said that the children looked has known Mother Father since healthy and care of and that taken she early years marriage. their Gordon saw bumps never saw and bruises on them. per them two or three times month at house. their Gordon said that H.B. has Branum said Father was always . always been small and that she saw her pleasant. any problems She did not have eating; Father; anything did not see that con- with very quiet, did not he was her. many cerned Gordon said that the children associate with at the people apart- however, longer monthly budget, 62. Father stated that no credit His did not include paying cards but admitted he had credit card amount that he would be toward during marriage. debt that had accrued that debt. placed on his that if the children were and was current believes complex, ment Father, danger payments. *54 Mother that had physically. said she Testimony 3. Groomer’s a signed relinquishment parental of her rights63 she wanted her children because with re- provided Groomer Mother safe, personally to be and she not could of Father’s be- ports of her observations When asked the achieve that. whether in- including irritability, anger, his havior— care, children would been safe her and fits—and Groomer stability, temper, they said that would have been safe she to Fa- opportunity the observe also had they’ll that “wanted make sure she to rarely herself. Father behaviors for ther’s safe their father too.” Mother be from nice, polite, profes- in a to Groomer talked trying that was to tell court agreed she the apart that sional manner. Groomer said feel protect that she did not that she could in the the lobby from confrontation the her children Father: location, Ben she had another Street CPS kids, if they I feel had the be I would Father, not but it was confrontation in my saying they safe home. I’m not that time ear- that She said one extreme. solely But as far as me pro- wouldn’t. case, they had words” lier in the “some tecting away them from him so that he things that she do when Father demanded cannot them come in reach contact way he wanted them done. When them, I no can’t. I don’t believe it to Fa- say was fair that asked whether can, I why that so that I said that to well, get along not ther and Groomer did the court. Fa- that she could not meet Groomer said ultimately slap Mother testified that one demands, including his demand ther’s person a parent makes unfit to be a immediately return children. she his person parental should lose said that she not have Groomer slap. for rights such a Father, conflict with but she personal person that he was a difficult thought 2. Burdick’s Recommendation Groomer, however, deal with. said Burdick told Father that she not would her personal feelings her did not affect be recommend that children returned handling professionalism this case. to him her was because concern for Requests Y. Recommendations of children. her welfare When asked on opinion whether Father has skills 1. Mother’s Recommendation four-year-old and a raise child three- opinion, In Mother’s Father would child, year-old Burdick said that she had good parent She make a children. concerns good because Father did take said that she would have concerns for himself; only care of she him saw twice if re- safety were he clean was and did not have an to Father because of what A.B. has turned extreme odor. She was also concerned incapable living told her and because of pictures cheek; had, money A.B.’s Mother he she saw of ear and amount of that he would parental rights ally, Mother If Father’s were not termi- Gordon told nated, everyone agreed that it be in a "deal” with would not Mother made CPS concerning court children’s best interest the trial her unborn child. details of However, relinquishment. any part accept such "deal” not made Mother's perfect appeal. did not an record. Mother Addition- children, money rights need more raise his it believed inwas A.B.’s and H.B.’s best view it interest. had an unrealistic of what Groomer be lieved that failure thrive to raise incident going to take his children. alone was sufficient to terminate Further, gets said that Father Burdick parental rights and single slap that a something and cannot be dis- focused parent’s sufficient terminate rights. tracted, a concern which was since However, Groomer said that her recom children, be in charge small mendation to parental terminate Father’s possessed inability an flexible *55 rights based everything that had change to accommodate chil- to small happened, including the CPS history in dren. Missouri,65 thrive, H.B.’s failure A.B.’s injury, 3.Groomer’s Recommendation and Father’s prog failure show ress after completing his services. Groomer that the were testified children neglected they in when were care Father’s 4.Ad Litem’s Recommendation and that she did not believe that litem ad testified that he had relied safe, provide could stable environment testimony of several witnesses: his re- children. Groomer testified Oldham, who had testified that he was returning her about garding concerns very concerned about Father’s mental.ca- children,to (1) Father: she did not that see Conner, pacity; who had testified that he he had from any pro- benefitted any did not see seizures in H.B. but trans- -though completed even he grams, ported her; her because of the bruises on (2) twice; them his of ex- behaviors were Barker, who had that testified she had (3) concern; treme did not know concerns about the of amount food in the how handle the children when were house, injuries A.B., that she saw on acting her, out he because told “[Y]ou explanation fallen; and A.B.’s he had (4) them”; let spank won’t me he had not Wright, who had inju- testified A.B.’s accepted ac- responsibility any of his planes ries were on two different and were (5) tions; go to jail he could if his proba- accident; Lazarus, not an and Dr. who had (6) revoked; tion was sure was not gaming H.B. was not weight he could take care of them financial- being she was because fed. The ad ly.64 Additionally, A.B. had nightmares litem recommended that the children not care, he first came into the children be returned to Father because did not disorders, eating and there a lack believe that would be children safe. bonding during of More- shown visits. over, children, who were three almost Requests 5.Father’s trial, and four at the time give Father asked the trial court to him “more than vulnerable” children who are opportunity get an back children’s older. much any lives. He said that he would not have Thus, Groomer’s recommendation problem being monitored another court was to terminate if parental gave CPS worker the trial court him However, specific Groomer agreed admitted that she had no Groomer she did not knowledge of Father's income because he any knowledge “have on what Court did it; would not talk to about Missouri,’’ Groomer’s and the record before us does understanding pay- received SSI not contain the Missouri records. CPS ments.
648 findings by “the cumulative argues that he was said another chance. modi- hardly justify a the trial court would with the children bonding still suit, custody much less the fication in a that his weekly visits and parental rights.”66 termination of [his] loved him. A. Burden of Proof and Standards he had told some- Father admitted Review were returned that if his children one
him, He clari- move to Missouri. companionship, “the parent’s rights A if he was only do that care, fied that he would custody, management” of his court; light” by the trial green interests given “the her children are constitutional any glad stay property “far than otherwise, precious “be more he would Kramer, 455 Santosky v. U.S. right.” Texas.” 758-59, 71 L.Ed.2d 102 S.Ct. Disposition Z. Trial Court’s M.S., (1982); In re S.W.3d evidence, the hearing After the above (Tex.2003). are parental rights “While *56 terminating signed judgment trial court they are not magnitude, of constitutional The court trial parental rights. Father’s imperative as absolute. Just it is evidence convincing clear and by found un recognize courts to the constitutional knowingly placed or that Father parent-child of the relation derpinnings children to remain allowed the knowingly that emotional and ship, it also essential surroundings which endan- in conditions of child sacri physical interests the not be well-being emotional gered physical the right.” In re merely preserve ficed children; engaged Father had of the 9 17, (Tex.2002). C.H., In a 8 S.W.3d 26 chil- knowingly placed the in conduct or case, Department termination the seeks in conduct engaged who persons dren with parental rights just to limit physical the or emotion- endangered which divest permanently erase them —to children; of and that well-being al rights, legal privi and child of parent all relationship parent-child termination of duties, existing leges, powers normally was in the children’s best with Father them, except right between child’s trial, Following termination interest. Ann. inherit. Tex. Fam.Code (Vernon hearing 161.206(b) 2008); prove-up the trial held a v. § court Holick Smith, (Tex.1985). for divorce. We granted petition Father’s 685 S.W.2d 20 strictly proceedings terminat- scrutinize termination judgment This from the appeal involuntary termi strictly construe rights followed. ing parental of parent. statutes favor nation III. Conduct Holick, 20-21; M.C.T., In and Environmental 685 S.W.2d at re
Endangerment (Tex.App.-Fort 250 S.W.3d 167 Worth 2008, no pet.). issues, Father In and third his second or factual- argues that there is no evidence proceedings parent- In to terminate the (D) (E) section ly relationship brought insufficient establish child under code, the family petitioner 161.001 of the grounds. Specifically, termination "findings Department. The factual back- 145 of able to 66. The trial court made primarily They ground opinion incorporates fact.” are recitations the trial of our presented during testimony fact, summations of findings we incor- court's various of findings of fact are incon- trial. Some of the porate legal in our and factual sufficien- them fact; findings are of some sistent with other analysis. cy Father, are favor- favorable to while others
649 however, sider, ground one under undisputed must establish listed evidence even (1) contrary is, the statute and must also if it is to the finding. subdivision Id. That inter- that termination is in the best must consider prove evidence we. favorable Tex. Ann. if a est of the child. Fam.Code termination reasonable factfinder could J.L., (Vernon 2008); disregard § In contrary 161.001 re evidence unless a (Tex.2005). Both S.W.3d elements reasonable could not. Id. factfinder established; may not must be termination must We therefore consider all of the solely be based the best interest of the evidence, just that which favors the child of fact. as determined trier judgment. termination Id. But we cannot Boyd, 727 Dep’t Tex. Human Servs. v. weigh credibility witness issues that de- (Tex.1987). S.W.2d pend appearance and demeanor of witnesses, sup- Termination decisions must be for that is the factfinder’s ported by convincing province. clear and evidence. Id. at 573-74. When credibility 161.001, record, §§ Tex. Ann. Fam.Code issues in the appear appellate we 161.206(a). is clear Evidence and convinc- must defer the factfinder’s determina- ing long if it in the produce “will mind tions as are not unreasonable. belief trier of fact a firm or conviction as to Id. at 573. allegations to be sought truth of the heightened clear-and-convincing 2008). (Vernon § established.” Id. 101.007 proof in burden of termination cases also process Due demands this heightened alters the factual standard sufficiency *57 in standard because termination results review we apply. reviewing In the permanent, for the changes irrevocable following evidence judgment termination J.F.C., In
parent and child. re 96 S.W.3d for sufficiency, give factual we must due J.A.J., 256, (Tex.2002); 263 see In re 243 to the findings deference factfinder’s (Tex.2007) 611, (contrasting S.W.3d 616 the supplant judgment with our own. standards for termination and modifica- H.R.M., (Tex. 105, In 209 re S.W.3d 108 tion). 2006). whether, must on We determine record, heightened clear-and-convincing the entire could rea factfinder in proof sonably burden of termination alters form a firm conviction or belief cases sufficiency the truth of legal allegations standard of review about the the that Fa (D) (E) In or the apply. reviewing we the evidence ther violated and that termi legal sufficiency parental parental rights in termi- nation of be in C.H., cases, nation we must determine the best interest of his children. See whether If, light the evidence is such that a could 89 at 28. in the entire factfinder S.W.3d record, disputed a firm reasonably form belief or conviction evidence that rea have grounds termination- sonable factfinder could not credited J.P.B., 570, significant in proven. finding In re 180 S.W.3d 573 favor of is so (Tex.2005). reasonably must evi- We review all the a factfinder could not belief, dence most to the a firm or light favorable formed such conviction in finding then evidence is judgment. factually Id. This means insufficient. H.R.M., that we must assume that the factfinder 209 S.W.3d at When revers disputed sufficiency in of its we de any ing grounds, resolved facts favor on factual opinion why if could in concluded finding a reasonable factfinder tail our we have disregard have done so. Id. We must also that a reasonable factfinder could not have disputed all in favor of its evidence that factfinder reasonable evidence credited J.F.C., could have Id. con- 96 at 266-67. finding. disbelieved. We must S.W.3d 650 533; J.T.G., Endangerment Boyd, 727 at 121 S.W.2d
B. Law specific danger at 125. The S.W.3d expose to loss Endangerment means may be inferred from well-being children’s 727 injury, Boyd, jeopardize; or S.W.2d parental, standing misconduct alone. J.T.G., 533; 117, 125 121 S.W.3d re In 533; R.W., Boyd, In 129 727 S.W.2d at re 2003, pet.); no (Tex.App.-Fort Worth see 732, 738 (Tex.App.-Fort S.W.3d Worth 268, (Tex. M.C., 269 In re 917 S.W.2d also denied). whether pet. To determine 1996). endangerment To under sub prove necessary, may termination is look courts (D), Department had to prove section parental occurring conduct before both (2) (1) placed or knowingly D.M., birth. after children’s In re (3) remain condi allowed his children (Tex.App.-Fort 812 Worth S.W.3d surroundings that endangered or tions pet.). no physical well-being. their or emotional Legally C. Evidence Sufficient Is 161.001(1)(D). § Tex. Fam.Code Ann. See Support Termination (D) dangerous focuses on con Subsection We first address whether evidence surroundings endanger or ditions legally support sufficient to termination well-being or emotional physical (D) pursuant or parental rights re 225 S.W.3d children. In (E)-that (1) is, knowingly whether 2006) (Tex.App.-Houston (op. Dist.] [14th H.B. placed knowingly or allowed A.B. and reh’g), judgm’t part, rev’d in aff'd surroundings to remain conditions or (Tex.2007). S.W.3d 611 It part endangered physical emotion- their suitability focuses' on the children’s (2) well-being engaged al in conduct or Thus, (D), Id. under it living conditions. knowingly placed per- the children with be environment itself that causes must engaged sons who in conduct that endan- physical the children’s or emotional well- gered physical their or emotional well-be- being endangered, parent’s not the ing. Ann. See Tex. Fam.Code conduct. Id. *58 161.001(1)(D), (E). § The Department’s (E), the inquiry Under relevant is legal a factual brief contains combined and endanger- whether evidence exists that the analysis in which on sufficiency it focuses well-being children’s physical ment the by five it acts or omissions Father that conduct, was the direct result of Father’s support Father’s contends termination of acts, omissions, (D) (E): including failures act. rights or to the allegations under 125; J.T.G., by A.B. him slapping See 121 S.W.3d at see also Father bruised 2008; 161.001(1)(E). in Father knew that H.B. July § Tex. Ann. Ad- Fam.Code 2007; (E) failing September to thrive in ditionally, under must be termination vio- the children witnessed domestic on a or single based more than act omis- lence; that had emotional difficul- sion; requires voluntary, de- statute ties; provide and that Father did not liberate, and conscious course of conduct safe environment for his children.67 We J.T.G., 125; parent. by 121 S.W.3d at all in the will examine of the evidence 161.001(1)(E). § see Tex. Fam.Code Ann. record, focusing allegations. on these however, necessary, par- It is not that the ent’s at the or separated, conduct directed children After Father and Mother actually injury. diagnosed failing suffer doctor H.B. as to thrive. thrive, allega- During argument, to violence oral the State focused the domestic A.B., mostly slap H.B.’s on to failure tions. Father's Mother, concerning Contradictory evidence exists and Mother’s falling. This evi- H.B. in Father’s care is frequently how dence some evidence that con- Father’s time, -viewing this evidence duct directed toward Mother an during created light in most favorable the termi- environment that endangered A.B.’s emo- Fa- or judgment, physical nation evidence exists that tional well-being. ther cared for H.B. to some extent around Some evidence exists that case- CPS diagnosis time of the failure-to-thrive workers found that Father failed main- growth
when H.B.’s was so stunted that a living tain environment suitable growth off the chart.” “falling she was clutter, smoke, children because of Thus, supporting evidence exists an infer- apartment. odors that filled his knew of and contributed ence that Father alleged resolved the other in deficiencies failure to thrive and that conse- H.B.’s physical home that he provided conduct, including omis- quently Father’s Likewise, A.B. and H.B. evidence in exists sions, endangering an environment created history the record of Father’s of mental by underfeeding her.68 for H.B. instability; and emotional Father admitted in diagnosed received bruises while that he had bipolar
A.B. been disorder, personnel swings care. CPS and medical at and he exhibited mood documented several bruises and was hospital belligerent toward CPS workers A.B., ap- varying ages including police. on what and the But no witness testified peared slap to be a mark on his face and no exists evidence that Father’s men- problems of A.B.’s ear. bruise sides Con- tal'and emotional caused conse- both ear, to his A.B. told or cerning quences bruise A.B. H.B. We are not aware any law, case people several that Father tried none has been cited to us, in Viewing holding his ear off. this evidence these or pull acts omissions most favorable to the termination light Father —clutter odors the home judgment, having diagnosed evidence exists been with mental and ear, slapped pinched problems endanger- A.B.’s face emotional and/or —constitute children, bruising. Although causing significant ing the absent evidence that inju- any actually medical tests ruled out additional acts or result these omissions pinch by ries A.B. from the slap physical danger some emotional and/or Father, expert testimony, a medical testified that all or H.B. this A.B. Absent such injuries potentially support to a child’s head are of ter- evidence no evidence (D) (E). Thus, that, severe. evidence exists mination under *59 occasion, Father po- least one inflicted a Viewing light all the evidence tentially injury severe head. to A.B.’s to judg- most favorable the termination bruises, Concerning A.B.’s other medical and evi- disregarding contrary ment all personnel opined that other these bruises factfinder dence a reasonable could were not consistent with accidental falls disregard, we hold that evidence ex- some because of their locations. This evidence firm support will a factfinder’s ists that is some evidence that Father’s conduct or that Father violated conviction belief physically A.B. endangered (D) (E), we subsection overrule a of and third is- fight part A.B. reenacted between Mother Father’s second sufficiency of pushing challenging legal and Father that involved Father’s sues underfeeding supported by by parents. 68. The is also the foster eating children’s habits were witnessed marks injuries of included red bruising the termination His to support the evidence See In A.B. and H.B. rights eye, to on of his an parental his underneath and one side J.P., 02-07-00026-CV, 2008 WL re No. eyebrow, his left red scat- old bruise on 283295, Feb. (Tex.App.-Fort *11 Worth cheek, his dot-type tered marks on left (mem. (holding op.) pet.) no ear, around left purple bruising his support to legally sufficient evidence was a mark” on the left “slap linear marks or revealed some when record termination face, and bruise on his side of his a small history had of appellant evidence that Concerning his abdomen and on buttock. a instability, to maintain mental failed linear the bruise to A.B.’s left ear environment, and did not dem- living clean face, on left side of A.B. and marks skills). parenting appropriate onstrate that A.B. had fallen. La- Father both said Factually is Insufficient D. Evidence ter, A.B. that Father “tried to said Support Termination to off,” any- but A.B. never told pull ear whether the evidence next address We Al- slapped him. one Father had support termi- factually sufficient is that be- though personnel testified medical parental rights pursuant nation of Father’s on A.B.’s abdomen and cause bruises (D) (E); that whether Father or (1) boney prominences, buttocks were knowingly allowed knowingly placed or likely not result an acci- they were or A.B. H.B. to remain conditions fall; rule personnel medical did not dental endangered physi- their surroundings bruising out other causes accidental (2) well-being en- or cal emotional three-year-old like A.B. toddler knowingly or gaged placed in conduct things, or bumping things, sitting into persons engaged who in con- children with falling. than Medical from accidents other endangered their physical duct testified that A.B.’s bruises— personnel See Tex. Fam.Code well-being. emotional face and ear —were other bruises A.B.’s (E). 161.001(1)(D), § We review all Ann. no one testified varying ages, but light, including in a neutral evidence than they whether were less than more allega- concerning five the evidence words, month In whether old. other by upon above and relied tions set forth (D) re- before or after Father Department establishing occurred (E) grounds for termination —that Father possession of A.B.69 gained July him in slapping bruised A.B. pleaded failing to knew that H.B. was in order to obtain guilty injury A.B. September thrive in that the that he could work his service probation so violence, domestic that Father witnessed adamant, that he did not plan, he was difficulties, and had emotional that Father A.B., far as to take slap going so even home for his chil- provide safe attempt in an polygraph examination dren. *60 his innocence. Mother testified
prove Injuries Factually Father, her AB.’s state- years A.B.— in all (E) Insufficient Ground incident regarding only ear is ment n in which her son that she was aware of A.B. had Medical tests established that may injured injuries beyond bruising. complained that Father underlying no apartment them at Father’s Department 69. The had returned the children Barker visited reported bruising. approximately A.B.'s to Father one month before
653 him. The record contains no evidence of 2. H.B.’s Failure to Factually Thrive — injuries physical prior (D) to the children (E) Insufficient Grounds apart- Barker’s second visit to Father’s The record before us is likewise factual- ment one month after he regained posses- ly insufficient to establish that Father children; likewise, sion of the the CPS knew of H.B.’s failure to thrive. Father referral in Missouri was not on any based testified that Mother took H.B. to the doc- (H.B. born). injuries to A.B. had not been tor for her check-ups. He said that he did (E) Termination under subsection may not attend H.B.’s doctor visits with Mother not ordinarily be based on a single trans- that often because she did not allow him to action, but rather showing “a of a course of go; no contrary evidence exists in the D.P., conduct is required.” In re record. Father testified that he was a 333, 2001, S.W.3d 338 (Tex.App.-Amarillo small child and eventually took growth D.T., pet.); no see also In re 34 S.W.3d hormones and that he believed H.B. was 625, 2000, (Tex.App.-Fort pet. Worth small because she took after him. Mother denied) (“[A] deliberate, voluntary, testified that the doctors thought H.B. was conscious ‘course of by parent conduct’ small like Father and that the doctors did required.”). is similar to Conduct not tell Mother to alter H.B.’s feedings. may be insufficient even under the prepon- derance of the modify evidence standard to paramedic responded who of a conservatorship child. See Stucki v. H.B. suffered seizures testified that H.B. Stucki, 116, 222 S.W.3d 123-24 (Tex.App.- “looked a little underweight for her size” 2006, Tyler no (upholding joint man- pet.) but was not emaciated and that the main aging conservatorship though even father reason he took her hospital was due had hit child on the head with a book hard to the abrasion on her head from being hit enough headache); give also see by toy, not her weight.70 Medical per- B.R.P., 11-07-00255-CV, In re No. sonnel from hospital testified that 1349954, WL at *2-3 (Tex.App.-Eastland H.B.’s failure to thrive would be less obvi- (mem. May pet.) op.) no (holding ous to those who saw frequently, H.B. that father’s slap left a red mark on it would be parent difficult for a to know of child’s face days for two did not cause problem unless he had been told substantial harm to require change of con- doctor, and that parents should have Thus, servatorship). viewing all of- the been told of growth H.B.’s issues at a well- evidence in light, a neutral the evidence baby exam. Mother testified that she was pinched A.B.’s ear and/or never told of any growth issues with H.B. slapped face A.B.’s and that A.B. had other before H.B. was taken to the hospital small bruises on his body factually insuf- seizures. Father ficient to testified that establish a firm H.B. ate conviction or baby belief that Father food and engaged'in endanger- scraps” an “table ing course of conduct Moreover, Father, from June 2008 drank whole milk. July Mother,71 and Gordon testified that after diagnosis 70. H.B.’s failure-to-thrive occurred the records reflect that Mother told medical when she hospital by was taken to the personnel that Jennifer W. watched the chil- paramedic. dren while Mother was at work and that Father watched the children "sometimes.” earlier, 71. As mentioned H.B.’s medical rec- *61 trial; ords testimony conflict with Mother’s 654 Father, her occurred between separated, Jennifer W.
Father and Mother children; the he had never harmed because p.m. from 3:00 to mid- kept children years Mother said in all worked; Mother Jennifer W. night while Father, regarding A.B.’s statement his ear kept that Father and Hall testified is only was incident that she aware of Assuming Mother worked. children while in her son that Father complained which correct, Hall are W. and that Jennifer may injured Additionally, him. Fa have only had the children Father would not be ther could certain the children the record during meal time. And one in the his punch saw Mother him face at that, to Ms. Cornelius’s according reflects apartment separation after the affidavit, apartment barren Mother’s Moreover, were in the bedroom. children Sprite. food than of other Mother, vio Father divorced so domestic (D) requires under that Fa Termination lence them will not be a continu between placed or “knowingly” ther allowed ing of the in Viewing issue. all evidence children to remain in conditions or sur light, factually in a in the record neutral physical their roundings endangered a sufficient evidence exists for reasonable See Tex. Fam. well-being. or emotional finder of fact to form a firm conviction or 161.001(1)(D). § Viewing Ann. all Code in had been placed belief that children in the record in a neutral the evidence environment dangerous because of factually is light, the evidence insufficient violence domestic between A.S., of fact to In 261 reasonable form Mother. See re S.W.3d finder (Tex.App.-Houston 84-85 [14th Dist.] firm that Father know conviction belief denied) pet. (holding that evidence See, ingly H.B. to be underfed. allowed legally factually support insufficient to J.R., (Tex. In e.g., re S.W.3d un parental rights termination of mother’s pet.) no App.-Houston [14th Dist.] (D) when, assuming der even be father’s legally evidence insufficient (holding in havior was abusive and had occurred allowed children knowingly show Mother children, mother taken front of endangering environment remain responsive protect action to when she moved with sex offender and environment); by them taking out record to show she knew of convic failed Lewelling Lewelling, see also v. offense). tion sex (Tex.1990) 164, 167 in con- (holding S.W.2d servatorship parent case “that a is a victim Factually 3. Domestic Violence — abuse, itself, no evidence spousal (D) Insufficient Ground awarding custody parent A.B. a fight reenacted between Father child”). significantly impair during pushed which Father Mother Mother and Mother fell. No evidence ex- 4. Father’s Mental and Emotional ists, however, that domestic violence be- Factually Insufficient Difficulties — (D) (E) tween Father Mother resulted Grounds children, physical injury to the and Mother Fa- While the evidence establishes that never testified she had seek medi- bipolar ther suffered disorder cal treatment as result of such domestic issues, anger no links men- evidence these fact, In Mother testified that violence. problems to endangering tal emotional never violent physically by Father. Father testified that conduct that she trusted Father with children and bipolar he was aware of his disorder and fluctuated, children, how moods and the record despite the domestic violence *62 J.R., medication reveals that he took for his 171 S.W.3d at (holding evidence disorder, factually bipolar though he insufficient to establish by even did not clear (D) (E) and convincing to, evidence that want or because he wanted his children grounds existed on alleged based unsani back. The in the record evidence concern- accord, environment); tary living M.C., 917 ing Father’s mental emotional difficul- S.W.2d- at 269-70 (upholding termination (D) ties is not in this evidence of case or under prior standard review based on (E) grounds; the Department not seek “extraordinarily unsanitary conditions” termination under section 161.003. See when infested; children’s home was roach (Vernon § Tex. Fam.Code Ann. 161.003 children ate food off of floor and out of 2008) (authorizing parent- termination of garbage; floor and furniture were littered child under certain relationship circum- food, garbage, dirty clothes, and stances based on mental or emotional ill- feces; one child dead cockroaches also, parent); generally, ness of see In re hair; matted her infant had dead cock A.L.M., 300 S.W.3d 919-20 (Tex.App.- bottle; roaches in summer, her and one Texarkana pet.). no mother moved children into house that water). lacked plumbing drinking or Apartment Factually 5. Father’s — (D) (E) Insufficient 6. Other Evidence Grounds plans worked two service —under Department record reflects that the plan, FBSS he attended parenting returned the to Father to live classes, completed psychological consul- apartment him at his one month be evaluation, tation psychiatric and a attend- fore their removal. involuntary ed seven sessions of Individual counseling, complied Department’s with the requests completed anger an management concerning apartment. He course; used the plan, under the he completed CPS gave classes, sheets that him pur VOA individual counseling, parenting an . anger course, management keep psycho- chased food to on hand even and a consultation; logical positive had no drug living children were with him. Al tests; and maintained the same resi- though lay gave opinion Oldham missing dence—all while never visit with apartment Father’s suitable for his children. small it messy children because was
cluttered'when he it approximately viewed throughout contended trial that trial, one month before he did not explain various caseworkers had a vendetta how the children harmed against him; these contentions are some- mess or clutter supported noted. Father’s what by evidence the record caseworkers, apartment obviously clean that one of enough Father’s Groom- er, accord, of her own contacted Father’s children to be returned to him in June probation make allegations officer so the record demonstrates that Fa against Father that were not relevant to ther the capability provide a clean his children. living space for the children when neces See J.A.J.,
sary. S.W.3d at 625-26 urged Various the trial court witnesses (holding legally evidence insufficient parental to terminate rights (D) support termination under when appel based on is not evidence that evidence of (E). lant improve living (D) worked to situation endangerment under Burdick after urged son was taken into State custody); parental termination of Father’s
656 a reasonable extensively for the forth above—that saying was concerned rights, favor factfinder could not credited Father had an extreme children because (D) (E) findings and is so of subsection money to raise the odor needed more significant that factfinder could not rea urged termination of children. Groomer sonably have formed a firm conviction or parental rights because she did Father’s the allegations the truth of belief of had benefitted from not think (D) (E). or violated subsections provide or that Father could services C.H., 28; H.R.M., at 209 See 89 S.W.3d safe Groomer also environment. the evidence S.W.3d at 108. Because family plan that the moved on one occasion light produce in a cannot viewed neutral from reunification to termination based firm belief or the mind of the trier of fact a conduct toward her. allegations truth conviction to the of not Although apparently Father was to be under subsections sought established caseworkers, congenial dealings in his (D) (E), factually insufficient exists odor,” extreme was not well off “an parental termination of Father’s support messy financially, had a cluttered (E). (D) rights under See subsections apartment, persistent point (E); 161.001(1)(D), § Tex. Ann. Fam.Code annoying belligerent and somewhat being J.P., (holding at *12 2008 WL with his calls and e-mails to caseworkers issues, appellant’s living mental health children, did not—in concerning conditions, skills parenting and her “any opinion one behav- person’s —exhibit endangerment rise to the level of changes improvement in char- [his] ioral or in context with the other evi considered programs,” acter this evi- completing after record). the part dence in the We sustain endangerment dence is evidence of Father’s second and third issues chal (D) (E). or under sufficiency of the lenging the factual evi Likewise, that the chil- evidence exists support the termination of his dence physical dren and mental demonstrated parental rights A.B. H.B. See San improvement while foster 758-59, 455 at 102 at tosky, U.S. S.Ct. skills, skills, Their social language care. M.S., 547; 1397; Holick, 115 at S.W.3d physical improved. health While 20-21; M.C.T., 685 250 S.W.2d S.W.3d facts, these as well as the various wit- at 167. opinions parenting nesses’ on Father’s Legally abilities,72are evidence of the best inter- IV. Evidence Exists Sufficient Supporting Finding Best Interest children, they ests of the are not evidence (D) or Father violated subsections issue, challenges In his fourth (E). sufficiency of legal and factual the trial court’s find- support evidence Factfinder Could Not A Reasonable ing it was in his best inter- children’s Reasonably A Have Formed Firm rights H.B. parental est for his to A.B. and or Belief That Father Conviction terminated. Because we have con- (E) (D) Subsection Violated factually cluded that the evidence is insuf- (D) support all the evidence in a neutral termination under
Viewing ficient to (E), whether there light, disputed the volume of we need not address evidence—set Adams, making Holley interest deter- 371- be considered in best See v. S.W.2d (Tex.1976) mination). (listing parenting abilities of seeking custody individual as a factor to (7) factually support sufficient evidence to whether there is history of abu- *64 finding. the trial court’s best interest See sive or assaultive by conduct the chil- However, P. 47.1. Tex.R.App. because we family dren’s or others who have access legally have held that there was home; sufficient to the children’s to support evidence the trial court’s find- (8) whether there is history of sub- (D) (E), ings under or and because a hold- by stance abuse the family children’s ing legally insufficient sup- evidence to others who have access the children’s port the trial court’s best finding interest home; would entitle Father greater relief than (9) whether the perpetrator of the what ishe afforded under a factual insuffi- harm identified; to the children is ciency holding, analyze we will whether legally sufficient support (10) evidence exists to the willingness and ability of the the trial court’s finding. best interest out, family children’s to seek accept, and complete counseling services and to co- A. of Review Standard operate with and facilitate an appropri- strong There is a presumption that agency’s ate close supervision; keeping parent children with a is in the (11) willingness the ability and R.R., children’s best interest. In re 209 family children’s positive to effect envi- (Tex.2006). Prompt S.W.3d personal ronmental and changes within permanent placement of the children in a time; period reasonable safe environment presumed is also to be in the children’s best interest. Tex. Fam. (12) whether family children’s 263.307(a) (Vernon 2008). § Code Ann. skills, demonstrates adequate parenting following factors should be considered including providing the children under in evaluating parent’s willingness and family’s care with: ability provide the children with a safe (A) minimally adequate health and environment: care; nutritional (1) the ages physical children’s (B) care, nurturance, appropri- vulnerabilities; and mental discipline ate consistent with the chil- (2) frequency and nature of out- physical dren’s psychological de- placements;
of-home velopment; (3) magnitude, frequency, and cir- (C) guidance supervision children; con- cumstances of the harm to the sistent with the safety; children’s (4) whether the children has been victim of repeated harm after the initial (D) a safe physical home environ- report depart- and intervention ment; agency; ment or other (E) protection repeated expo- (5) whether the children are fearful of sure to violence even though the vio- living in returning to the child’s may lence not be directed at the chil- home; dren; and- (6) psychiatric, the results of psycho- (F) an understanding of the chil-
logical, or developmental evaluations of dren’s needs and capabilities; and children, parents, children’s oth- members, (13) er family or others who have whether an adequate sup- social home; access to the children’s port system consisting of an extended Father, friends available to after visits the children had family and nightmares, their behavior reverted to children. being more infant-like. The children also R.R., 263.307(b); S.W.3d at § Id. developmental delays. exhibited Other, trier factors that the nonexclusive expressed being had trouble flexible may in a termination case use fact discipline that he did know how the chil- determining the best interest of without them. spanking (A) the of the chil- include desires dren *65 meals for the ability provide to nutritious (B) dren, emotional needs physical the questioned, and Father children had (C) future, now and in the of the children family help area to him no other the the physical danger the emotional above, his children. As mentioned raise (D) future, and in the now the children exists evidence demon- the seeking of parental abilities the individuals physical improvement mental strated (E) programs the available to as- custody, care; their they while were in foster lan- the best promote these individuals to sist skills, skills, guage physical social (F) children, plans of the the interest Thus, improved. plan, health the as stated by these or the the children individuals record, Greg’s family in the was for (G) custody, stability of agency seeking the ' (H) adopt the children. the proposed placement, the home or may of parent or omissions the which acts Viewing light the evidence in the most the rela- existing parent-child indicate judgment, favorable termination we (I) one, proper any not a tionship is legally that the hold evidence is sufficient for the acts or omissions of the excuse support the trial court’s best interest Holley, 544 at 371-72. parent. S.W.2d Dep’t finding. See Horvatich v. Tex. of exhaustive; Servs., factors are some These not & 78 Regulatory Protective S.W.3d may be to some inapplicable listed factors 594, 601, 604 no (Tex.App.-Austin cases; may other factors not on the list (holding pet.) legally evidence sufficient to appropriate. be considered when also finding but support factually best interest C.H., Furthermore, at un- 89 S.W.3d best interest support insufficient find just may of factor disputed evidence one S.G.S., In 130 ing); see also re S.W.3d particular support in a case to sufficient (Tex.App.-Beaumont no pet.) 240-41. in the best finding termination is evidence (holding legally sup sufficient child. other interest of the Id. On the trial court’s interest port finding). best hand, of rele- presence scant evidence portion therefore We overrule Fa support each factor such vant to will challenging legal ther’s fourth issue finding. Id. sufficiency evidence. Supporting Inter- B. Evidence Best Rights Due Were Not V. PROCESS Finding est Expert By Violated Denial of above, In addition to-the facts detailed Witness Fees supporting the record contains other facts above, attempt mentioned in an As above, exception the factors listed with the prove regarding his innocence slapping children’s wishes because A.B., polygraph took a exam on testify. children were three and making pre- 2009. After some March time of four at the the trial and statements, polygraph test examiner vulnerable, according They to Groomer. put any Father whether he had asked placed been Father’s home outside face, parents foster on A.B.’s hit reported twice. The bruises whether face, the State’s A.B. bruise caseworkers’ biases and putting preju- A.B.’s face to dices. Father had caused whether him; bruising an- anything hit Generally, the admission and exclusion questions. “no” to each three swered of evidence is committed dis sound the polygraph The evaluation of results cretion of trial court. See Owens- of decep-
failed to reveal criteria indicative Corning Malone, v. Fiberglas Corp. questions. Father at- tion to relevant (Tex.1998). 35, 43 S.W.2d To determine tempted polygraph to introduce results discretion, whether a court trial abused its trial, and the trial court excluded the we must decide whether the trial court any polygraph results and discussion re- acted to any guiding without reference polygraph exam.73 garding words, rules principles; in' other we issue, Father argues arbitrary In his first the must decide whether the act was rights his due process Henry, trial court violated unreasonable. Low v. *66 609, (Tex.2007); by denying expert him to witness S.W.3d 614 access Cire v. Cum (Tex.2004). 835, Specifically, argues mings, fees. that the 134 S.W.3d 838-39 by denying request trial court erred his Although Father argues that he should fees so that he could expert witness have been able to ask whether CPS the pay expert lay predicate an to the the polygraph caseworkers considered introducing exam into results polygraph deciding exam in to recommend the termi that acknowledges evidence. Father this parental rights, nation of his the record previously pro- court has ruled due that he attempt reveals that did not this do provide not the by cess is denied refusal Instead, at attempted trial. to discuss eases, in expert witness fees termination during testimony, the results his the J.T.G., 130, 121 that he see S.W.3d trial court polygraph excluded the results has no Texas case the applying found regarding poly the discussion the process right expert criminal due to an to graph did have exam. trial court not Be- parental rights termination cases. opportunity to rule the is specific on we also no case applying cause find law sue that Father raises here because this process right parental the criminal due issue not before it. See Banda v. cases, rights termination we overrule this (Tex.1997) Garcia, 272 955 S.W.2d portion of first issue. on must (stating complaint appeal that presented Father also in his issue in be the same as that in the trial argues first court). Therefore, oral argument his brief and his on the record before us, say discretion we court should been allowed broad cannot that trial (i.e., by not Fa introducing poly- allowing results from abused its discretion took) graph challenging exam that he ther to the CPS casework cross-examine however, note, polygraph that court inadmissible in court. 73. We the trial require report assuring Burdick's final that was spent He time this counselor has redacted, admitted into to be and it evidence Injury Child pl[ed] guilty that to a following regard contains the to the He was told he had no choice. because he polygraph exam took: by another of victimization sees this as form March, spent $500 In to have a [Father] and CPS. His intent is to take courts polygraph exam Richard Wood. I en- poly[graph] Judge results back couraged spend money [Father] gave probation prove him he did wisely of his chil- more for the betterment injure attempt, get son [in to] his an prove going He dren. stated he overturned. conviction not hit son. I him that he did his also told 660 THE 322ND DISTRICT COURT poly FROM they considered
ers on whether making their results graph examination OF TARRANT COUNTY terminating pa recommend decision to at Father never rights rental MEMORANDUM OPINION1 tempted question the caseworkers (Father) Appellant In five D.B. points, (holding id. at trial See that issue terminating trial order appeals the court’s on a cannot reverse based appellate court children, A.B. parental rights to his court); see in the trial complaint not raised the evi- and H.B. Because we hold State, v. 802 S.W.2d
generally Tennard find- endangerment supporting dence (holding that (Tex.Crim.App.1990) 683 insufficient, we reverse the ings remains ex polygraph and results of the existence Fa- judgment terminating trial court’s pur for all are inadmissible aminations denied, poses proper objection), rights cert. remand case parental ther’s this L.Ed.2d 501 U.S. S.Ct. trial. to the trial court for another new (1991). the remainder We overrule first issue. of Father’s I. Factual Procedural and Background
VI. Conclusion evidence Having determined Background A. Procedural *67 trial support insufficient to factually family section matter findings court’s under code This the second time this 161.001(1)(D) (E), trial and we reverse the our has been before court.2 new and remand for a judgment court’s opinion, in first A.B. As we detailed our trial. placed family H.B. mem- and were WALKER SUE in after then fifteen- September bers 2007 JUSTICE H.B., only fifteen weighing month-old MCCOY, JJ.; PANEL: and WALKER hospital; she pounds, was admitted to the (Senior Justice, and DIXON W. HOLMAN De- had suffered a seizure. Texas Retired, by Sitting Assignment). Family Ser- and Protective partment 29, 2010 July DELIVERED: (TDFPS) had vices concluded Appendix neglected. The children physically been voluntary family place- remained in that OF COURT APPEALS nine months before TDFPS ment about OF DISTRICT TEXAS SECOND care.3 About returned them Father’s reunification, TDFPS re- month after FORT WORTH Father after moved the children from NO. 02-11-00209-CV injuries that opined that A.B. had doctor accidental, placed TDFPS were H.B., A.B. IN INTEREST OF AND THE an fami- the children with unrelated foster CHILDREN *4, Tex.R.App. P. id. at 1. See 47.4. 3. See A.B., 2-09-00215-CV, 2. See In re No. July (Tex.App.-Fort WL 2977709 Worth (mem. op.). pet.) no petition its for termi- best interest
ly.4 findings TDFPS filed that the trial court had made the first appeal About seven months trial. This day. nation the next followed. later, placed the children were sec- family, foster G.H. and J.H.5 ond Background B. Factual trial, a bench Fa- In June after previous our opinion Because set forth parental rights
ther’s terminated great detail the evidence from the first by first time. The trial court found trial,10 opinion this section of our will set convincing evidence clear forth additional evidence admitted in the or al- knowingly placed knowingly second trial —relevant evidence from hew the children to remain in conditions lowed exhibits, testimony relevant from new -wit- their surroundings endangered or nesses, and testimony new from repeat physical well-being, emotional n witnesses. engaged knowingly in conduct or 1. New Exhibits persons the children with who en- placed chil- gaged endangered conduct that Family Summary a. Assessment physical well-being, emotional dren’s TDFPS offered the trial court ad- termination of the parent-child into family mitted evidence a assessment chil- relationship with Father was in the completed summary Missouri De- (Mother’s) S.B.’s dren’s best interest.6 (MDSS). partment of Social Services This terminated, rights were also but she summary pertains assessment to a Decem- appeal that decision. investigation ber 2005 that MDSS had con- judgment from that appealed ducted into the living conditions that legal suffi challenged and factual provided Mother Father had for A.B. ciency endangerment findings of both living in Missouri. This summary while *68 finding.7 the- In July of best interest that reported indicates someone had that re judgment court reversed and this living A.B.’s in the family’s conditions the trial In manded case to court.8 hazardous, unsanitary, home wére and im- so, doing we Father’s suffi legal overruled mediately threatening to A.B. due to a lack ciency challenge challenges, sustained his feces, presence dog heat and of pf sufficiency the factual of the evidence clothes, everywhere. dirty and trash endangerment findings, supporting the summary The assessment confirms this did not reach his challenge and report part part. in and it in refutes Some sufficiency support factual evidence summary boxes checked indicate ing finding.9 best interest No one living that were conditions hazardous petitioned for review our decision. immediately threatening, and that they rights parental were terminat- improvement, that needed someone for poor ed a second time June 2011 a reported hygiene dirty clothes. However, jury made endangerment the same other cheeked boxes indicate See id. at 4. at *13. 8. See id. *44. See
5. id. at *28. *36, 9. See id. 40-42. See id. at
6. *32. 10. id. at *1-32. See See id. at *1. c.Project Disposition RAPP Form being needs were dental medical and that clean, met, were living conditions and the trial court admit- Father offered were sanitary, and there orderly, and Project Disposi- ted RAPP into evidence The assessment infestations. no observed Form, indicating psychiatrist, tion family that the provides summary further Mims, in Au- Dr. Robert evaluated friends until the heat staying with Project RAPP offices. gust at the home was restored. their own notice the fact judicial We take Mental County Project RAPP is Tarrant told Father representative An MDSS (MHMR) pro- Health Mental Retardation made appro- had Mother recidivism gram that seeks to reduce provide A.B. provisions priate through psychosocial reha- psychiatric minimum that met stan- staying trailers indicates The form further bilitation.11 free to move to were dards that Father did that Dr. Mims concluded summary states The assessment Texas. of mental signs symptoms not have were needed that services require from illness and did not services and moved out of the family declined them Project RAPP. summary provides The also state. prior assessment MDSS had conducted Terminating Father’s d.Order unsanitary con- living Adjudication and for for abrasions Deferred in June 2005 and concluded ditions and the trial court ad- Father offered that services needed. an 2009 or- mitted into October evidence terminating adjudication his deferred
der to a community supervision injury Records from the b.H.B.’s Medical (A.B.). order, In this the trial court child Department Bedford Fire notes that presiding over the criminal case the trial ad- TDFPS offered and court nine satisfactorily completed Father had mitted into evidence medical records show- two-year adjudica- deferred months possible that H.B. had a seizure ten ing community supervision period tion calling prior minutes someone 9-1-1 satisfactorily terms and fulfilled his sequence The chart September community supervision. conditions of that H.B. was found awake and indicates further discharges Father order arms, pupils alert in Mother’s that H.B.’s *69 community supervision, allows Father reactive, and that equal were wheezes crim- plea, withdraw his dismisses The upper detected in her lobes. were Fa- releases inal The order further case. Mother’s statements narrative summarizes re- penalties ther “from all and disabilities EMS, that A.B. had hit H.B. including sulting crime of which from the offense or days toy prior in the head with a four which he has he has been convicted [to] prompted air had provided by that H.B.’s as law.” pleaded guilty, gasps report The Mother to call 9-1-1. outlines Adjudication of Deferred e.Order observations, in- responder’s medical Jo Rains for Sammie forehead, an on H.B.’s cluding abrasion ad- hospital notes that the staff was told and the trial court TDFPS offered 2010 order investiga- mitted into evidence March notify possible TDFPS for a convic- adjudication for Rains’s of deferred tion. 201(b). Tex.R. Evid. See elderly an bodily injury person. thoroughly tion with infested roaches. The trial, record, Father testified that at time of next dated October in- -together, living and Rains cludes an entry that the roaches were expecting might a child be his. apartment. “Bad!!” in Father’s The final record, 16, 2010, dated November indicates f.Images apartment Father’s had heavy roach parents, A.B. and H.B.’s foster interve- infestation. All four records indicate that J.H., nors G.H. and offered and the trial at least one other in apartment the com- court admitted into evidence two exhibits plex being treated on each of those relating to Father’s involvement adult days.
websites. The is a image first exhibit Myspace webpage of Father’s that encour- Psychological h.2011 Evaluation ages profile viewers to create a member TDFPS offered and trial court ad- adult provided. an website at a link The mitted into Dr. Ryan’s evidence Parnell image other exhibit an Father’s January 2011 psychological evaluation of “adultspace.com” page, profile which con- Father. According report, Dr. tains nude photographs. image indi- Ryan’s diagnostic impressions were that cates that Father logged has not in since bipolar has disorder -not other- June 2008. (NOS) wise specified partial sustained Additionally, the trial court admitted remission, attention-deficit/hyperactivity into evidence photographs several NOS, disorder adjustment disorder with taken, G.H. and J.H. including photo- mood, depressive and chronic motor tic rooms, graphs of the children’s of the chil- disorder and was abused as a child. The costumes, up dren dressed report indicates that Father told Dr. lying walking fields of blue- Ryan that he did not take prescription
bonnets. medications, and Father denied that he drugs ever used illegal or alcohol. Ac- g.Lease Violation and Pest cording to report, Father had been Control Records child, in foster homes as but at attorney The children’s ad litem- offered evaluation, time of described his and the trial court admitted into evidence relationship with mother “[o]kay” as notices of Father’s lease violations as well and with siblings “good.” as Fa- pest control records greatest ther’s fear at the time was los- notices, apartment. The dated September TDFPS, ing his children to and he re- 2010, report and September violations gretted cursing getting angry at and unhealthy unsanitary living condi- personnel. TDFPS poor housekeeping. tions and The first *70 record, comprehensible pest Ryan report control dated Dr. states in his that Fa- 28, September 2010, indicates that ther’s profile “suggests Fa- someone who has apartment ther’s with difficulty understanding was infested roaches how proble- his that and a cleanout matic would scheduled for impact behaviors others” but that record, following week. next needing change anything dat- denied to 5, 2010, ed October indicates that Father Ryan about himself. Dr. recommended services, not comply with instructions for clean- that Father participate TDFPS treatment the apartment out and that attend counseling, was and obtain medical eval- also that Father told her manage- medication Porter testified possible for uations separated, he after he and Mother that difficulties. his attention ment of his from watch the children at home would 2. New Witnesses midnight while Mother p.m. 3:00 until that de- worked. Porter further testified a. Jennifer Porter a child’s delays impact could velopmental was a TDFPS testified that she Porter well-being for the rest her life without and H.B.’s case and for A.B. investigator treatment. proper 1, 2007, assigned that was October she hospital. in the She when H.B. was still Cornelius b. Lamorra discharged from was testified H.B. Cornelius, for the investigator a TDFPS 2007, 8, and around October hospital unit, testified that emergency response lot.” there a She “up that- Father was caseworker, was TDFPS her when she a cooperative was testified that Father help job parents to work with to them her. testified that get their children back. She attempted. the testified that she Porter she first met with Father October when 9, 2007, visit on October first home placed the children been She that Father was not home. added family members. She testified inside, dogs barking heard several month, apartment his she walked into window, in the sitting that there was a cat her biting legs she felt fleas noticed of animal strong odor, there odor strong carpet, stains on the roaches apartment. kitchen, inside coming dirty black feces water However, Porter to Father the next dishes in dishwasher. Cor- spoke When nelius, any pictures of did not take these day, told her that he had contacted he conditions. city he did not have the pound because without a car take ability means or time Father Cornelius testified each cats dogs the four four away office, come visits at the TDFPS would apartment. brought Mother her, yell and scream at make that when she visited Fa- Porter testified demands, going when he was ask 10, 2007, apartment on October ther’s get children back. She said that this his strong odor of animal feces there was in the children’s pres- behavior occurred urine, animal excre- and animal stains and that this concerned ence and floor, walls ment were on the it use of his time with his was not wise bugs although were visible in the testified that ripped up, children. Cornelius home, initially noncompliant, including refrigerator in the and the Father on all from Novem- worked services that she made the freezer. She testified February ber 2008 and that physical finding of “reason to believe” TDFPS made a decision March neglect, and she testified that condition have visits in home. allow apartment danger- be a of Father’s could young children who ous environment that when she visited Cornelius things in put on the floor and their crawl April apartment on it was testified that she did not mouths. Porter any She said that she did not notice clean. apartment condition of the dur- know the but that she told Father odors stains ing may time that Father have been keep more food in the that he needed to *71 she not that after a for the'children and that did Cornelius also testified caring house. April, in Father returned apartment with her. four-hour visit pictures Ryan hungry dirty c. to TDFPS and Dr. the children She testified that park. from at the being Ryan, Dr. psychologist licensed and hungry the children after he also returned counselor, professional testified that he got and visit next four-hour two psychological conducted evaluations of her when discussed his angry consultation, with she diagnostic Father one all She of which were explained failure to feed children. admitted into evidence in the second trial. The consultation and the difficulty food obtaining that had Father first evaluation were also admitted into family members with whom because the in'the trial. evidence first had the food placed the children been had get- stamps and that had trouble Father Ryan Dr. that the global testified assess- (GAF) back to ting stamps the food transferred of functioning ment how assesses had person doing him. that Father well a in that Cornelius testified life and with person usually a GAF under 50 is food for the children the next visit hospitalized. Ryan Dr. that Fa- testified gave friend him food. because a 2009, GAF ther’s was 75 in 55 in re- Cornelius testified that when Father in 2011. He diagnosed testified that he children the next two turned the from deficit attention hyperactivity visits, May in overnight one visit NOS, adjustment disorder disorder with children one in June did mood, NOS, depressive bipolar disorder been But appear to have bathed. Corneli- and chronic motor tick disorder that re- despite us that concerns testified any sign not see of psychosis being being garding the children fed and paranoia. Ryan Dr. also testified Fa- dirty, the were placed returned children report being any ther did not on medi- 2007, 2009, back with Father on June in cation or 2011 and that a psychiatrist’s report in 2009 indicated she Fa- testified that visited Cornelius pharmaceutical a referral for a as- patient 17, 2008, ther and the children June on program sistance not needed. was was odor in the air and that there a rotten Ryan Dr. testified con- stains, trash, “[flood, just kind of years. in presented sistent how he over the food,” old no food to in on floor but eat lacking Ryan insight Dr. also testified that When opened home. she bedroom into own the be- one’s behavior and how door, lying she found children bed. is a problem par- havior affects others her, she They respond did not which enting children but that whether it is a testified was unusual. She testified endangers dangerous situation —whether it 27, 2008, again she visited on June physical well-being— a child’s emotional or worsened —more the conditions had problematic behavior depends what the floor, food on the unclean dishes in Ryan that Father’s in- is. Dr. sink, except rotten that there and a odor— mildly improved by the last evalua- sight the home. The some edible food in problematic issues tion and next time that saw Ryan Dr. were the disorders which hospital were taken due Ryan Dr. diagnosed him. previously injuries July She to A.B.’s bipolar having testified that disorder does placed testified that the children were being good prevent someone night foster care that that she believed parent present and that Father did not in a placed Ryan the children Dr. further dangerous person. be- everyone problematic testified that has dangerous environment. *72 e.Bryan Knox control able to that Father was havior and Ryan Dr. when he chose. his behavior investigator Knox testified that TDFPS control inability to that an also testified interacting with Father when began he behavior, illegal example, one’s own that Father and Cor- TDFPS determined could use, insight of He coupled with lack a lot of conflict. testified drug nelius had apartment he went Father’s that a child. endanger n 2008, possible investigate July Father testified that Ryan Dr. .denied A.B. Knox testified that another abuse of and denied change anything needing were also there. investigator police be- counseling Ryan Dr. but that needing Knox, refused according Father But to. counseling be- need lieved that apartment, anyone but Knox into the let children. separation from his of his cause police officers and Father called recom- that he did not Ryan Dr. testified “pigs.” go anger manage- that
mend they all went to the Knox testified that Fa- whether classes. When asked ment “[ajngry, angry, that Father was hospital; likely participate services ther would an officer to angry”; that Father told said, TDFPS, Ryan through Dr. offered dick”; the children were “suck his and that “Possibly.” say that. and heard Father Knox present jury that he had never seen a
told police way. that He treat officer parent d.Dr. Carl Shaw that violence also testified domestic Shaw, physician emergency at the Dr. cases, it is detrimental to the children’s Hospital, of Cook department Children’s abuse. well-being to observe the emotional July A.B. on examined testified Knox further testified that around A.B. of had several locations 2008 to June been April testified around his head. Shaw bruising apartments. Father’s Knox testi- inside and that x-rays detected no fractures with him when he fied that Cornelius was life-threatening were injuries A.B.’s the first which was apartment, visited type injuries were of not the but that smell, mice, bugs, no clean—no no by an acciden- a toddler would sustain a child. Knox tes- nothing endangering to within a short fall or successive falls not with him tal tified that Cornelius was apart- visited second testified that when he of time. Dr. Shaw amount ment, nothing Knox more which said injuries in his affidavit that A.B.’s he wrote that he did messy. than Knox said likely physical abuse. consistent with working relationship a bad Fa- testified that A.B.’s skeletal Dr. Shaw a referee of sorts ther and no bone survey prior showed evidence between Cornelius and Father. in his Dr. Shaw testified injuries. f.Yal Trammell affidavit, question his answer to the be in he felt that the child would whether aide, Trammell, a TDFPS case testified injury or at danger additional immediate she observed visits at TDFPS risk of harm if released a substantial his children office between Dr. Shaw “[Pjossibly so.” parents 2008 until June 2009 while from October that he could not tell whether parents. lived with foster She the children at differ- happened one time or visitation facili- injuries acknowledged other to observe permitted ties TDFPS workers ent times. *73 a mirror but that Perez noted through community super- visitations theirs that one required vision condition had those that Father was more intrusive and stressful for medication, take that Father was not ini- the being observed because observers tially compliant regard, in this that Father doorway sat were stood or the and a psychiatric 2009, obtained evaluation in those being visible to observed. and that the psychiatrist did not recom- virtually that at ev- Trammell testified mend medication after that evaluation. visit, ery anger Father a lot of displayed Perez also noted that Father angry was TDFPS in of his at toward front children agitated during and most of his with visits visit, the said beginning things the repeat her and that he point would con- supposed are to be said in front not tinuously to make sure that it was heard visit, occa- got on a loud on children but not scream generally yell. She going said that while this sion. She was community testified that supervision on, get very look quiet, the children would department only required was to have two down, move to other side of per contacts Father month but that it trying room if to make as them- thirty contacts with him in June selves invisible. Trammell clarified explained She these contacts were anger primarily Father’s was directed TDFPS, mostly police department, TDFPS was never directed at agencies community other su- calling pervision asking She office and it said that TDFPS to address children. workers contacting issue Father them too guard but security had to call at times often. down played that when calmed children, well, things fairly
with the went July Perez testified that from 2009 to appear and the children did apartment October Father’s him. Fa- afraid of She also testified that generally very cluttered and unclean hostilely ther did act toward TDFPS living the children were not there attorney on one occasion when his and the during explained that time. She that fast present, showing ad attorney litem were wrappers food and containers were left ability apart- had the to control out. Perez opined not an appropriate place ment was anger. there “primarily children live Trammell further testified that she very odor from the litter strong [wa]s up pick children J.H. box.” Perez testified that she also detect- G.H.’s home to take them the TDFPS body well ed a litter box odor as as human visits, that office J.H. and G.H.’s home was- apartment odor and noticed that beautiful, and that was surprised apart- cluttered when she visited Father’s how quickly bonded January ment in them. trial, Perez testified that at the time of community supervi- was on Rains Perez’s g. Reagan-Perez Melissa injury elderly sion caseload for Perez, County community su- Tarrant previous charges that Rains had of theft officer, pervision testified that Father was elderly. juvenile and of assault on the adjudication community super- on deferred Rains, preg- Perez testified that who was September vision from 2008 to October nant, May moved in with point successfully at which he was out in then September moved and the back in with Father in discharged case dismissed. moved December *74 that explained Rains 2009. She she evaluated Perez that identified added period play therapy. them over a of time in Jones, lived with Perez believed Jeff who parents She testified that when foster Rains, boyfriend as her and Father and in, tired, brought him A.B. was and his as the father her child. identified affect was “rather flat.” She described his had an- testified that Rains Perez further purposeless very as and but play repetitive custody of not have other child but did that cooperative. Johnson testified H.B. had never seen that child. Because Perez strong and did not con- aloof children, could interact with Perez Rains A.B., anyone except nection with whom A.B. H.B. to whether and opine not attached, and that John- greatly she was Rains. would be safe around on working empa- son was still with H.B. thy. displayed that H.B. Johnson testified h.J.H. training. regarding potty unusual distress previous experi- testified about her J.H. Johnson also testified that A.B. tried to children, working ence with which included this bite J.H. on one occasion but that preschools. in testi- daycares and She gone for children who have unusual that she and her husband want fied through some sort of trauma. She also H.B. also testified adopt A.B. and She early A.B. hit on said that J.H. G.H. children, routine with the daily about trigger always that known. playing with H.B. in which includes that She further testified while chil- school, G.H. takes A.B. to morning after fantasies, played they out sometimes dren ready taking for H.B. getting pre-K, H.B. ordinary. She things said out of the ex- afternoon, resting picking in the pre-K, things plained that A.B. said about some- school, working up children children, “I stealing one don’t want them them, having homework and snacks with dead,” their “cutting brains out.” dinner, bathing letting play, having them period Johnson testified that she went a day, every putting other them to them seeing time without but that children bed. having A.B. was trouble October psy- testified that she told A.B.’s J.H. to school and transitioning going fall chologist tendency that A.B. had a energy day, after all he was expending his had say down G.H. too to eat when he sometimes exhausted pushed him. J.H. that Father testified got home. She testified that at the time of reports filed re- had several with TDFPS trial, working modifying they were be- chil- garding couple’s treatment of the havior children ask the so will explained reports parents help dren. She these foster when needed and to they disruptive stop meltdowns before occur. were because as result reports, the children interviewed at Finally, Johnson testified that she was school, cried, the children and A.B. had G.H., really impressed with J.H. and temper Finally, tantrums. she testified with they relationship had a beautiful each re- police that she had never called children, and that the other and with the garding Father but that G.H. had. them “[M]ommy” children call “[D]ad- dy” [D]addy.” and call Father their “other
i.Elaine Johnson j.Joanna Letz Johnson, professional a licensed counsel- play therapist, or and children’s testified Letz testified that TDFPS caseworker had March with children who been that she first saw children in she worked care, par- the foster children. She testified that the into foster put ents, She parents. with the birth had been with J.H. and G.H. over just that she had been the children’s explained years; two a loving relation- children; August since 2010 and ship caseworker and that the chil- working with Father since October love, kindness, been nurturing, dren received She order support, security, emotional and structure *75 par- back with a placing consider in J.H. and G.H.’s home. ent, She parent’s visit the home. she must permanency Letz testified that TDFPS’s apart- she went to Father’s
testified that goal Father his children had been but was ment on that he October in reunification that in October not there. 2010, when she tried visit Father’s first she
Letz testified that the time that apartment, it rights was for Father’s to be saw was at the courthouse on Octo- Father terminated and for children to be 21, 2010. She that she had ber claimed adopted. opin- Letz testified that in her herself to him there but tried to introduce ion, in it was the children’s best interest that he not that he had told her could parental rights for Father’s termi- to be anyone his speak attorney being without nated. that him present. She testified she saw office, where met Sheryl next at the TDFPS she k. Coaxum attorney Fa- with Father and his about Coaxum, assistant of the Cher- manager said even plan. ther’s service She that ry Apartments, Hill testified that Father’s already though completed Father had 9, 2008, lease June began there classes, anger man- counseling, parenting paid his rent on time. testi- She examinations, agement, psychological fied that Father had lease in violations She that again. she offered them testified September and October 2010 for unsani- agreed only completion Father conditions, tary living which were noticed psychological another examination. pest company. control She testified Letz that went to Father’s testified she requested pest that Father had con- January She apartment again in apartment Sep- trol treat his but that on door, opened stated a man first 28, 2010, pest company tember control opened and then woman door not personnel they told Father that she not supposed told Letz was it, until apartment treat his he cleaned she there. Then Father told Letz that especially area behind the microwave attorney could not come in without his pest control found dead roaches. where being present. Letz admitted Fa- pest She testified that control could attorney told ther’s had indeed her not 5 be- apartment treat Father’s on October speak Father his attorney with without in- complied cause Father had not it also and that she. believed was to clean it and that visited structions policy. to be” TDFPS’s She “[supposed apartment twice after that. Coa- contacting went to Father’s home without xum testified that maintenance em- also lawyer she believed that it ployees would not fix Father’s dishwasher “duty” “job.” and her September 2010 until cleaned dirty floors. that she had no Letz that she had seen J.H. and She testified testified of a or a many complaint G.H.’s home times and that it was record lease violation during inspirational they parent unsanitary living to watch how conditions offering addition were March 2008.14 In July while his children June during had offered testimony that she with him. living trial,15 during the first Barker testified that further Coaxum trial that when revisited second girlfriend, her that Rains was told in a different July lived him, and that living Rains been apartment than he lived before. with his child. pregnant Rains this apartment She testified that clean, pets, that she he had no Betty I. Williams any animal but did see looked around Williams, Cherry in the Hill resided who overwhelming notice feces or roaches or an apartment complex the same Apartments, odor. resided, testified that she in which Father *76 Wright c.Nurse Donna for eleven twelve known Father or
had She at the of trial. testified months time testimony providing In to addition apart- come over her that Father would the first provided during that had she computer. her She de- ment to work on trial,16 during testified the second Wright “laid temperament 2008, scribed language July trial in A.B. had that help that he would her and testified delays. back” delays developmental no other but do, could not anything that she many do that there are reasons She testified she nev- very respectful, delays, and that had a have language that child can stimulation, trouble including or insufficient upset anything him about get er seen infections, hearing, ear or neuro- multiple testified She that temper. lose in her logical delays. She testified very about his concerned children. seemed can frus- opinion, inability this verbalize Testimony Repeat from Wit- 3. New tantrums, child, temper a trate cause nesses problems jeop- that can cause behavioral or well- physical ardize a child’s emotional a. Conner Chris being. Conner, a with the Bedford paramedic Octo- Wright next testified about H.B.’s essentially the Department, Fire offered diagnosis, which ber 2007 failure-to-thrive testimony during that he had offered same opined being caused of- However, of de- the first trial.12 instead In enough fered food. addition to discuss- scribing appearing lethargic,13 H.B. as dates, ing weights, percentages ap- trial that she testified the second trial, first that she had addressed signs normal and did not exhibit of peared that H.B. in the fiftieth she added a having had seizure. 2007, percentile weight February third and dropped that she to between the b. Barker Janice 9, 2007, by April and to percentile the fifth by May of Amer- employee percentile As an Volunteers of below the third ica, such parenting opined parent Barker and She that a would notice taught January drop a testified H.B.’s doctors homemaking 2008 to skills A.B., 15. See id. at *8-9. 12. See WL at *4.
13. See id. 16. See id. at *14. id.
14. See *8. ready were not to make a failure-to-thrive eludes “development anywhere from gross motor, motor, 3, 2007, she, skills, May language and that fine diagnosis as social skills.” too, He testified run more also those “[i]f would have needed to tests type skills and development [were] at that before a making diagno- time such impeded, pose would ... a danger [that] sis. physical child’s and emotional well-be- Wright physical testified that H.B.’s ing” by keeping meeting child from endangered by emotional health was her milestones. failure to thrive because it caused her to He further testified problems seizure. She testified that at the head growth, which experienced H.B. July time of H.B.’s evaluation in H.B. diagnosed she was with failure to delays “would language have a thrive, endanger could physical child’s potentially endangering effect on [her] and emotional well-being by leading to re- physical well-being.” Wright or emotional tardation. if When asked H.B.’s failure to further H.B. had motor skill thrive could have led to if retardation her delays developmental that could continue untreated, condition gone Dr. Lazarus ability over and affect get time said that it could have led development job, play sports, physical do that was below what expected would be *77 labor, Wright opined which would also her. tendency have a to endanger H.B.’s well- being. Wright also testified H.B.’s e.Jennifer medical records noted “some concern Jennifer, one children’s initial fos- development about the head and [her] ter parents, repeated during the second Wright cranium.” explained that insuffi- testimony trial the that she had offered cient can cell growth nutrition inhibit brain trial,18 during the except first that she did a endanger physical child’s and emo- not state this time that H.B. used well-being tional and can permanent- do so profanity years when she was two old. ly if it is not corrected. f.Constance Burdick d.Dr. Peter Lazarus In repeating testimony addition to In addition to offering testimony similar trial,19 that she during had offered the first testimony that he had offered dur- Burdick, a clinical social worker Cath- trial,17 ing the Dr. first Lazarus testified Worth, olic Diocese of Charities Fort testi- during the second trial that he would have fied a during psychol- the second trial that exam, needed to a history physical do ogist had diagnosed paranoia. Father with tests, preliminary some a nutritional attorney When her showed Dr. consult to rule out reasons medical before evaluation, Ryan’s Burdick that this stated making diagnosis a failure-to-thrive in May evaluation, she said the most which was evaluation, current did not paranoia list a diagnosis.
He testified failure to thrive can Also, lead to repeated problems infections Burdick testified that her clinical with psychosocial development opinion in- in 2009 was that Father was “low —which 17. See id. at *5. 19.See id. at *19-20.
18. See id. at *26-28. control,” only person other who lived impulse trial that
functioning insight stayed overnight was apartment in his or emo- endanger physical which could baby have Rains she was due to a child. She ex- well-being of one’s tional explained 2011. He he was March func- parent that a who low plained unsure who the father was because he and difficulty tioning insight would month and separated for about one Rains child, ill an how care for an knowing Jones, time Fa- spent who some child, injured developmen- or a child -with Rains apartment protect ther’s while par- explained tal She also problems. be father. Fa- gone, Father was could be impulse with low control would ents seeking to qualify ther said that Rains spontaneously inclined to act without more Security disability for Social benefits but child,” and to set thinking, “smack disability that he was unsure what she had. children. example bad for their that he did not know g.G.H. pregnant until after Rains became injuring for community supervision testimony repeating In addition grandmother. He said that trial,20 during that he had offered first person still consider Rains to be safe during G.H. testified the second trial around if her actions kindergarten and A.B. and H.B. were in out grandmother pro- toward her respectively, exemplary in an school pre-K, tection for her child rather than out of A.B. was in Indian district and that grandmother. pure anger toward her Guides, enjoyed. which he He testified “special needs” that A.B. was considered Testimony Regarding ii. language delays but that speech Apartment His *78 worked with him lot outside of school apartment that his was Father testified improving. he also that G.H. probably not as nice as J.H. and G.H.’s daily routine testified about the children’s apartment it home but that was nicest training he that and J.H. about he that that could afford. Father stated receive and maintain to be licensed living his him with when parents. foster came his apartment Cornelius on- again G.H. testified about Father’s reports Knox to make her initial when line G.H. activities but this time added that his the maintenance workers came to of a profile page found seventeen- explained He that he had not apartment. year-old who in a female claimed Letz into his apartment let because he of relationship with Father and that some attorney anyone had agreed his who profile depicted on her photos page apartment wanted to see his would have to drug paraphernalia. attorney permission obtain from his to en- apartment. ter the h.Father king-size Father testified that he had a i.Testimony Regarding Rains bed with two twin mattresses underneath repeating In addition to the same testi- springs it that functioned as box and that couches, during he mony had offered the first he also had an entertainment cen- it, trial,21 computer Father with a during testified the second ter TV and *1-4, 7-10, 16-23, 28-30, 32. id. at *28. Id. at See Testimony living Regarding in room. He iv. computer table TDFPS stated that he not have a toddler bed Father testified that when Mother’s he yet or a crib but that could obtain family given possession members were of only that he had those. the children after H.B. was released from one cat had more than and never one only the hospital. got to see the apartment began animal in the that he children one time over two- or four- renting June 2008. period, month and so he had to “bug and bug bug” get TDFPS visits at the Testimony Regarding
iii. Education TDFPS office. Father testified that he and Income felt like he aggressive, had to be argumen- he Father testified that had taken a few tative, and demanding toward TDFPS be- County Community classes at Tarrant Col- cause would not look the facts and lege recently spring pursuit as would not phone return give calls to degrees of one computer of two him an update or to tell him what to do —informa- security technology personal tion com- next.
puter support. He testified that his cumu- He testified permitted that when was grade point average college lative awas away to take the children from the TDFPS 3.8 and planned returning visits, office for ride the bus was so long classes when the TDFPS case was over. together most their time spent
Father stated that he could not remem- on the park. bus or at the He testified what job ber his last was and that he during fed them these visits but supplemental security dirty continued to receive that he returned them from their income him time at the despite psychiatrist telling park. He testified that he had e-mails, calls, to send having that he showed no a mental make signs phone file complaints explained get illness. He the Social Secu- his visits last over four hours. rity Administration had done a review since disability psychia- status admitted that he and the trist’s report. Father testified that his hospital children were at after A.B. security, income social consisted of his food injured, highly upset he was *79 stamps, money and the that he earned TDFPS him investigating again was and from He donating plasma. said that he maturely that he did not act toward them. financially ready
was not to have the chil- Father testified that he was when released dren if returned but'that the children were jail guilty after pleading injury to to him, stamps returned to his food child, a he contact tried to his former $400, increase from to which would be $360 Groomer, caseworker, Ruth about his ser- plenty money. times, vice her plan many and had to call e-mails, go send her and “over her head” during peri- that a time get to the service started. He plan testi- od that he had an included March attorney, fied that he retained an Myspace advertisement on his website for to attorney compel, filed a motion that the website, network, an adult an affiliated plan put place, service was and that he September joined which he completed the with plan excep- service He stated that he did whatever he could do tion of the intervention class. batterers’ money got to make a percent- and age of the he proceeds that adult website Father testified that had a horrible relationship made off his referrals. with Groomer and that he also e-mail, call, eating along her was with milk or formula. go “over head” had to and with records at trials up to set visits his chil- Medical admitted both repeatedly testified, babysat sister He indicate that Mother’s dren. at children while work and Mother I tried to be calm and .collected [W]hen “some- Father watched know, them, when I tried you with do not times” and some weekends but and a right thing leave voicemail and consistently. back, get call I would never a wait for a like, It was almost it [Fa- call back. he was testified that unable it; ther], him don’t call back. forget get hospital be with H.B. after know, they like blew off You it’s me following Monday until the be- seizure they every got. chance transportation bus for cause there no way actually get I could only him spent over the weekend but that he was to respond them to me call single day, “[e]very except that Satur- e-mail, call call and e-mail and day Sunday” hospital. He testi- make complaints. knowledgeable enough fied that he was not time during the that H.B. her seizure he went Father stated develop- but that he was now familiar with visits, office for he had words with TDFPS of children. goals mental milestones accused him of Groomer because Groomer taking He testified that in addition abuser, also being thought child required by classes were his ser- treat him person, horrible not as vice he took a class “Positive plan, called him. parent, respect and did He ad- [Development” on his own. [B]rain got arguments mitted that he into TDFPS at the TDFPS office but personnel Sufficiency II. Review did not occur each time and did this Endangerment in front of children. not occur Evidence Father testified that he filed several re- points, In first and second genuine ports TDFPS because he had argues that there evidence is no or factual- concern such well-being, children’s (1) ly insufficient evidence that know- they being pushed concerns that as ingly or placed knowingly allowed A.B. were in care. while J.H. G.H.’s or
H.B. to remain conditions surround- Testimony Regarding v. HJB.’s ings endangered physical their
Failure Thrive (2) well-being or in con- engaged emotional knowingly placed duct or children with was small Father testified that he persons engaged who conduct that en- child and that he malnourished their well- dangered physical emotional suffered from seizures as a child'. He said *80 being.22 and were together, when he Mother eating doing H.B. everything A. Burden of and Standards of Proof supposed doing. she was be Review July September said that from 2007 until 2007, rights A to “the parent’s companionship, he watched H.B. “a few times a week, care, custody, management” of his or not on a but but consistent basis” her, are cared ate her children constitutional interests when he normal pizza any like “far “scraps” precious property table or whatever he more than (E) (West Supp.2012). 161.001(1)(D), 22. See Tex. Fam.Code Ann. §
675 case, State right.”23 process heightened In a termination Due demands this parental limit just rights seeks not standard termination results in permanent, permanently changes to erase them divest irrevocable for the —to privi parent legal rights, parent of all and child.30 and child duties, leges, powers normally existing In evaluating the for legal evidence suf- them, except right between the child’s ficiency parental cases, termination we strictly termi to inherit.24 We scrutinize determine whether the evidence is such proceedings strictly nation construe reasonably that a factfinder could form a involuntary termination statutes in favor of firm grounds belief conviction that the the parent.25 for termination were proven.31 We review proceedings parent- In terminate the all the evidence in the most light favorable relationship brought finding child under section to the and judgment.32 We resolve code, family petitioner any disputed 161.001 of the facts in favor the finding of if ground must one under establish listed reasonable factfinder could have done (1) the statute also disregard subsection and must so.33 We all evidence that a prove that termination is in the inter- best reasonable factfinder could have disbe- est of Both We the child.26 elements must lieved.34 consider undisputed evidence established; may based even if is contrary finding.35 termination not be it That is, solely on the best interest of the child as we consider evidence to termi- favorable could, determined the trier of fact.27 nation if a reasonable factfinder we disregard contrary evidence unless a sup- decisions Termination must be reasonable factfinder could not.36 ported by convincing clear and evidence.28 Evidence it “will convincing weigh credibility is clear if We cannot witness is- produce in fact a depend the mind the trier of sues that on the appearance and witnesses, firm belief or conviction as to the truth of demeanor for that is the sought the allegations province.37 to be established.”29 even factfinder’s And Kramer, 758-59, 745, (West 2008). Santosky 23. § v. 455 U.S. 29. Id. 101.007 1388, 1397, (1982); 102 71 S.Ct. L.Ed.2d 599 M.S., 534, (Tex.2003). In re S.W.3d J.F.C., 256, 115 547 (Tex. 30. In re 96 S.W.3d 263 2002); J.A.J., 611, In see re 243 S.W.3d 616 (West 161.206(b) § 24. Tex. Ann. Fam.Code (Tex.2007) (contrasting standards for termi Smith, 18, 2008); Holick 685 20 v. S.W.2d modification). nation (Tex. 1985). J.P.B., 570, (Tex. 31. In 180 573 re S.W.3d Holick, 20-21; R.R., 25. 685 S.W.2d at re In 2005). 213, (Tex.App.-Fort S.W.3d 233 Worth 294 2009, pet.). no 32. Id. (West § 26. Tex. Ann. Fam.Code 161.001 J.L., Supp.2012); re 84 In 163 S.W.3d 33. Id. (Tex.2005). Id. Boyd, Dep’t 27. Tex. Human 727 Servs. v. D.T., (Tex. 1987); S.W.2d In re Id. (Tex.App.-Fort S.W.3d Worth *81 denied) pet. reh'g). (op. on 36. Id. 161.001; § 28. Ann. Tex. Fam.Code also see 2008). 573, 161.206(a) (West § 37. Id. at 574.
676
in the
ill effects of a less-than-
appear
appellate
possible
credibility issues
family
ideal
environment.44
record,
deter-
to the factfinder’s
we defer
are
unrea-
long
as
not
minations
prove endangerment
To
under subsec-
sonable.38
(D),
prove
TDFPS had to
that Father
tion
(2)
(1)
allowed his
knowingly
placed or
the evidence for factual
reviewing
In
(3) in conditions or
children to remain
deference to
sufficiency,
give due
we
surroundings
endangered
physi-
their
supplant
ver
findings
do not
jury
well-being.45 Subsection
cal or emotional
Here, we determine
dict with our own.39
(D)
dangerous
focuses on
conditions or
record,
whether,
a factfinder
on the entire
endanger
physical
surroundings
reasonably form a firm conviction
could
of
well-being
the children.46
or emotional
violated subsection
parent
belief that the
suitability
It
on the
of the chil-
focuses
161.001(1).40
(E)
If, in
(D) or
of section
Thus,
living
dren’s
under
conditions.47
record,
the disputed
light of
entire
(D), it
subsection
must be the environment
could
a reasonable factfinder
evidence that
physical or
itself that causes the children’s
finding
in
favor of
not
credited
endangered,
to be
well-being
emotional
so
factfinder could
significant
parent’s
conduct.48
a firm belief or
reasonably have formed
(E),
in-
Under subsection
the relevant
finding,
truth
its
then
conviction
quiry is whether evidence exists that the
factually insufficient.41
the evidence is
endangerment
physical
of the children’s
well-being was the direct result of Father’s
sufficiency
we
on factual
reverse
When
conduct,
acts, omissions,
including
or fail-
opin-
our
grounds, then we must detail
Additionally,
ures to act.49
termination
that a reason-
why
ion
we have concluded
(E)
under subsection
must be based on
dis-
not have credited
able factfinder could
omission;
single act or
more than a
finding.42
of its
puted evidence
favor
deliberate,
voluntary,
requires
statute
and conscious course
conduct
Endangerment
B. Law on
however,
necessary,
It
is not
parent.50
expose
loss or
“Endanger” means to
parent’s
conduct be directed at
requires
It
more
injury,
jeopardize.43
actually
the children or that the children
metaphysical injury
injury.51
specific danger
than a mere threat
suffer
161.001(1)(D).
§
38.
at
45. See Tex. Fam.Code Ann.
Id.
573.
H.R.M.,
105,
(Tex.
M.C.,
563,
(Tex.App.-
46.
In
352
39.
In re
209 S.W.3d
108
re
S.W.3d
566
2011,
2006).
pet.).
Dallas
no
161.001;
C.H.,
§
40. Tex.
Ann.
In re
47.
Id.
Fam.Code
17,
(Tex.2002).
28
89 S.W.3d
Id.
48.
41. H.R.M.
677 from belief or well-being may be inferred der’s firm conviction that children’s (D) (E), violated subsections and we standing alone.52 To parental misconduct portions overrule those of Father’s first termination is neces- determine whether two points challenging legal sufficiency look sary, may parental courts conduct of the evidence to support the termination child’s occurring both before and after a rights of his parental on these two birth.53 grounds.58 Sufficiency Analysis Legal C. Sufficiency Analysis D. Factual trial, As in the first we first address As did in the opinion, we first we next legally whether the evidence sufficient address whether the factually evidence is support parental termination Father’s to support sufficient termination Fa- (E).54 (D) rights pursuant subsection or parental rights ther’s pursuant to subsec- con- Much of the same evidence that we (D) (E).59 tion all of We review legally sidered to be sufficient to terminate evidence, focusing on the evidence con- rights pursuant to sub- parental cerning the three allegations TDFPS (D) (E) (D) section the first trial was relies on as establishing subsections (E) (1) grounds termination: during admitted into evidence the second (2) H.B.’s failure-to-thrive diagnosis, Fa- trial.55 there evidence Specifically, (3) behavior, hostile the condi- ther’s for H.B. to extent Father cared some tions of Father’s homes.60 diagnosed around the time she was with failure thrive due to malnourish- 1. Failure Thrive time, Thus, ment.56 as it did this last opinion We concluded our first evidence an inference supports relating the evidence to H.B.’s failure-to- knew of and contributed to H.B.’s failure diagnosis factually thrive insufficient and, consequently, to thrive that Father parental rights to terminate Father’s un- endangered underfeeding her and (D) (E) der subsection rea- knowingly her to in a mal- allowed remain sonable factfinder could not have formed a endangered nourished her.57 condition firm belief or conviction that Father un- Accordingly, viewing all the evidence or knowingly derfed H.B. allowed her to the light most favorable to the termination be underfed.61 contrary judgment disregarding all ev- Knowledge a. idence that a reasonable could factfinder disregard, evi- again we hold that some Most the evidence the first trial support knowledge dence exists a factfin- to Father’s was also relating 533; R.W., 161.001(1)(D), Boyd, § 52. at 727 S.W.2d In re 129 57. See Tex. Fam.Code Ann. 2004, A.B., 732, 2977709, (E); (Tex.App.-Fort S.W.3d 2010 WL *35-36. 738 Worth at denied). pet. J.P.B., 573; A.B., 58. See 180 S.W.3d 2010 at D.M., 801, (Tex.App.- 53. In re S.W.3d WL at *36. pet.). no Fort Worth A.B., See 2010 WL at *36. A.B., WL See at *35. 60. See id. 55. See id.
56.See id. 61. See id. *38.
678 daily namely, that Father had the children EMT shows in the second offered trial — 3:00 to p.m. while Mother worked from that H.B. did not testimony Conner’s Chris that midnight, while other evidence shows and Father’s testi- appear to be emaciated only had the children “some- Father H.B. doctor mony Mother took 65 in appeal, And the first we con- Father, times.” check-ups without if had the that even Father cluded thought H.B. was small because worked, daily Mother while evidence him, and that he did not know took after to under subsec- insufficient terminate to thrive.62 While failing that H.B. was (E).66 Also, trial, first tion as in the in the trial that a Wright second added in the trial shows that evidence second drop have noticed H.B.’s parent would H.B., took care of he fed her percen- the fifth to below from the fiftieth “scraps”, pizza, along table such as 2007, February April in to weight tile milk. Father knew that this is not evidence that Indeed, failing to thrive.
H.B. was Therefore, no additional evidence was at that point not even know doctors did during the second trial to introduced thrive, and failing Wright to that H.B. was our determination that the evi- change both testified that and Dr. Lazarus factually to insufficient show that dence is needed to conduct more tests would have sep- conduct after he and Mother May making diagnosis- such a before endangered by causing H.B. or con- arated 2007. tributing to her failure to thrive.67
Therefore, no additional evidence was appears argue that because TDFPS during change the second trial admitted separate Mother until Father and evidence fac- that the our determination is 2007, July Father had sufficient contact finding tually support insufficient 2007, during April May with H.B. failing that H.B. was Father knew falling when H.B. was off the growth thrive.63 chart, tie his to her conduct failure Indeed, thrive. evidence
b. Conduct regular contact H.B. and H.B. conduct, the evidence this falling growth during As for Father’s off chart does that Father the second trial not show time in both trials.68 period admitted However, ap- after he and had the children more often there no evidence pellate the evidence in the record of either trial that Mother separated Mother than offering enough as in first H.B. first trial showed.64 Just Instead, trial, time.69 the only in the trial food at that evi- some evidence second A.B., 2977709, at 68. 2010 WL *3. 62. id. See See 161.001(1)00); §Ann. 63. See Tex. Fam.Code 14-12-00022-CV, A.H.A., 69. re In No. Cf. A.B., C.H., 28-29; at 2010 WL 89 S.W.3d 1474414, (Tex.App.-Houston WL at *8 2977709, at *38. 26, 2012, (mem. Apr. pet.) op.) no [14th Dist.] (noting going the children had been 2977709, A.B., WL at *38. See through garbage looking cans for food at *38 & n. 71. See id. and that the mother admitted that rations very to run toward the end of the tended low *38-39. 66. See id. at 02-11-00141-CV, H.N.H., month); In re No. (Tex.App.-Fort *2 Worth 161.001(1)(E); 2012 WL at § 67. See Tex. Fam.Code Ann. C.H., (mem. 28-29; A.B., (stating pet.) op.) no at Jan. 89 S.W.3d 2010 WL endangered by failing her child *38-39. mother *84 regard testimony endangered them, dence in this is Father’s tions Wright’s that Dr. trial H.B. was Lazarus’s during testimony regard the second that eat- in this did normally support when termination ing Mother under subsection (D) (E).73 or were together. Accordingly, viewing all the jury reasonably could have evidence
While and affording due jury deference to the requisite inferred the conduct based on a findings, we again hold that the evidence diagnosis of failure to thrive due to malnu- relating to H.B.’s diagno- failure-to-thrive 2007, April trition or May jury in sis is factually insufficient to terminate a diagnosis.70 not have evidence of such parental rights under subsection Instead, jury in the second trial had (D) (E) or because reasonable factfinder testimony Wright from both and Dr. Laza- could not have formed a firm belief or rus that would have needed to con- conviction that Father underfed H.B. or making duct a series of tests before knowingly allowed her to be underfed.74 failure-to-thrive at diagnosis time. Therefore, no additional evidence was in- 2. Hostile Behavior during troduced trial to change second opinion, In our first we held our determination evidence is fac- evidence injuries of A.B.’s factually tually insufficient to show that Father’s insufficient to parental terminate Father’s conduct regarding H.B.’s nutrition before (E).75 rights (D) under or subsection he and Mother separated endangered Therefore, even if inju- Father committed H.B.71 ry to a child—his criminal case was dis- missed after he successfully completed evidentiary The main difference between deferred adjudication community supervi- Wright first and second trials is that sion—TDFPS needed to offer additional and Dr. supplemented Lazarus their testi- evidence in second trial to show that mony during by the second trial address- in engaged a continuing course of ing in ways which A.B.’s and H.B.’s endangered conduct his children’s physical well-being and emotional well-being.76 endangered by developmental been their However, delays. there was no trial, In the second TDFPS did show developmental new evidence these de- injured Father had either of his chil- lays Indeed, direct result of Father’s dren on another occasion. Dr. conduct,72 Shaw, knowingly placed or that Father Hospital Cook Children’s emer- gency department physician allowed children to remain condi- who examined M.C.T., up
wake
time to
child
feed her
before the
72. See
S.W.3d at 169.
250
school).
child left for
161.001(1)(D),
§
73. See
Fam.Code
Tex.
Ann.
S.H.A.,
73,
(Tex.
70. See In re
728 S.W.2d
86
(E).
n
n.r.e.)
App.-Dallas
(inferring
writ ref’d
child,
parents
properly
did not
feed
de-
id.)
74.
209
See
S.W.3d at 108.
spite little direct evidence
to what
foods
basis,
daily
they fed the child on a
A.B.,
WL
75. See
at
2010
*37.
diagnosis
evidence included a
of failure-to-
malnutrition).
thrive caused
M.C.T.,
76. See
S.W.3d at
161.001(1)(E);
§
See
Tex. Fam.Code Ann.
28-29; A.B.,
C.H.,
at
WL
89 S.W.3d
*38-39.
po-
toward
timony about Father’s conduct
July
testified that A.B.’s
A.B.
sup-
lice
new
officers was not
evidence
pri-
no evidence of
survey showed
skeletal
(E).
port
under subsection
termination
not tell
that he could
injuries
bone
at one
injuries happened
whether A.B.’s
*85
TDFPS
b. Conduct toward
times.
time or at different
in the
trial that
Father admitted
second
However,
argues that the inci-
TDFPS
relationship
had a horrible
Groom-
of
just
many
is
one
involving A.B.
dent
trying
through
er
the
go
and that after
and violent
of Father’s hostile
examples
having
“bug”
then
proper channels and
namely,
conduct toward
course of
others —
calling, emailing,
repeatedly
TDFPS
TDFPS caseworkers—
police officers and
head,
over
he felt like
going
Groomer’s
(E).77 TDFPS contends
subsection
under
be aggressive, argumentative,
he had to
of this
the children’s observation
that both
for
demanding
toward TDFPS
some-
inability to control
and Father’s
behavior
him
update
one
tell
what
give
him an
or
his behavior
or
the effect of
understand
However,
opinion
next.
our first
do
well-being.78
the children’s
endangered
of
behavior
addressed evidence
personnel, evidence that
toward TDFPS
toward Police Officers
a. Conduct
behavior,
children witnessed his
in the
only
new evidence admitted
responded
evidence
how the children
trial
Father’s conduct
regarding
second
we
Specifically,
such behavior.82
described
testimony
police
toward
officers
an
2009:
April
instance
Knox,
investigator,
TDFPS
very
came to a visit while he was
when Father cursed
present
children were
straight toward Groom-
agitated, walked
Hospital.
at
officers at Cook Children’s
er,
ranting
raving
and shak-
started
However, we
infer this fact when we
could
face,
finger in her
waved his
ing his
first appeal,
issue
addressed this
arms, and
at
Father said
screamed
her.
from the first trial that
based on evidence
program
director
that Groomer and
hospital
at the
and that
the children were
[TDFPSj’s plan
lied to him about
had
Indeed,
extremely
loud.79
we
Groomer said that
for reunification....
Brooks,
opinion
noted in our first
screaming,
her
Father stood over
investigator charged with investi-
TDFPS
down, and would not calm himself
not sit
July
regarding
2008 referral
gating
security guard
and the
even after she
A.B.,
aggressive
described Father as “so
requested that he
down. The
calm
your
loud and in
face” that on
and so
to a
retreated
corner because
children
to come in
“people
several occasions
they appeared to be afraid
him.
him to
quiet
going
and tell
be
fearful
Groomer became
children
hospital.”80
to have him taken out of the
to be returned
decided
even testified that
this behavior
Brooks
should terminate Father’s
[TDFPS]
parental rights.
into her decision to remove the
Groomer canceled Fa-
factored
Therefore,
day,
Knox’s tes-
ther’s visitation
day.81
161.001(1)(E);
§
80.
id. at
n. 31.
77. See Tex. Fam.Code Ann.
See
*13
M.C.T.,
78. See Fam.Code A.B., id. at *21. 82.See WL at *13 79. See & n. give make-up did not visit. Because the second trial involve did not
[TDFPS] conduct, new evidence of Father’s hostile testified that in her seven and Groomer again evidence of Father’s conduct will [TDFPS], she had years a half factually termi- support insufficient anyone as Father upset never seen (E) nation under subsection absent new it made upset He was so was. evidence that this conduct endangered the anxious.83 fearful or well-being of his children.87 trial, In the first we decided such endangerment conduct was evidence of Endangerment c. (D) (E).84 Moreover, under subsection Knox testified trial that second *86 contention recognized
we
Father’s
the children’s observations of
in-
Father’s
had a
that various TDFPS workers
ven-
teractions with TDFPS endangered the
him
against
sup-
detta
was “somewhat
well-being
children’s
is
because it
detri-
in
ported by evidence
the record.”85
mental
child to observe emotional
abuse
a domestic violence
In-
situation.
new
the'
only
evidence in
second
deed, evidence of children’s observations
trial relevant
Father’s conduct toward
of domestic violence can
to sup-
be used
regarding
TDFPS
is evidence
caseworkers
port
finding
endangerment.88
of
Howev-
frequency
his outbursts
toward
er,
confirmed,
as Trammell
never
Trammell,
them.
Specifically,
TDFPS
hostility
directed his
toward
his
visitation,
aide who observed
testified that
visits,
during his TDFPS
is no
and there
virtually every
Father would act out on
evidence that he directed it toward Mother
visit from October 2008 to June 2009.
While conduct need not be direct-
either.
However, was
from
apparent
it
the evi- ed at
endanger-
child
constitute
first
dence in the
trial that
acted ment,89
testimony
Knox’s
about the effects
way
this
on numerous occasions: Groomer
of domestic violence is not evidence that
employees
had testified
two TDFPS
Father’s behavior toward TDFPS endan-
required
gered
to observe Father’s visits
well-being
his children’s
and there-
fore not
in support
and that this was
evidence
of termination
appropriate
(E).90
under subsection
guard
intervened in
visits several
times due to Father’s behavior.86 There-
expres-
TDFPS
contends
Father’s
fore,
testimony
Trammell’s
about the fre-
sion of his
demon-
frustration
TDFPS
quency of Father’s outbursts
toward
control,
impulse
strated low
which
levels
employees
new
TDFPS
was not
evidence
Indeed,
endangered his children.
we have
support
termination
subsection
inability
under
anger
held that an
to control one’s
(E).
some
of endangering
is
evidence
conduct.91
M.R.,
807,
(Tex.App.-Fort
83.
Id.
re
243 S.W.3d
819
2007,
pet.).
Worth
no
84. See id. at *40.
J.T.G.,
89. See
86.
*21.
See id. at
A.B.,
2977709,
WL
90. See
2010
at *36.
161.001(1)(E).
§
87. See Tex. Fam.Code Ann.
J.G.K.,
02-10-00188-CV,
See
No.
In re
2518800,
See,
C.J.O.,
261,
(Tex.App.-Fort
e.g.,
2011 WL
at *40
In re
S.W.3d
265-
denied);
(mem.
(Tex.App.-Eastland
pet.)
op.).
pet.
In
Worth June
no
disorder, Dr.
Burdick,
bipolar
As
Father’s
social
And
the.Catholic Charities
Father,
pre-
disorder
Ryan
said that this
does
worker who evaluated
being
good parent,
from
that Father
vent someone
indicates
report
that her 2009
bipolar
par-
disorder was
impulse
levels
con-
functioning
had low
remission, and that Father
However,
Ryan,
evaluated
tial sustained
Dr.
who
trol.
present
dangerous person.
as a
both testi-
did not
and Trammell
no
Similarly,
there is also
evidence
able to control
that Father was
fied
adjustment
any way
not Father’s
disorder in
And, notably,
Ryan
Dr.
behavior.
children;
rather, Dr.
anger management
endangered the
recommend
even
Therefore,
showing Ryan diagnosed Father with this disorder
even
classes in 2011.
we
because of
jury findings
counseling
and recommended
due deference
children.
must,
separation
on the Father’s
we
conclude based
cannot
rec-
only
Ryan
have The
that Dr.
jury
reasonable
could
medication
record that a
Fa-
medication to treat
ommended was
formed a firm belief
conviction
disorder,
there
was evi-
ther’s attention deficit
toward others
Father’s behavior
disorder, his
no
this
inability
anger
to control his
evidence
dence of an
*87
disorder, or his GAF
under sub-
chronic motor tick
endangered
his children
(E).92
his children’s well-be-
endangered
score
section
testify
Ryan
Dr.
ing. Because
did not
claims that
To the extent
TDFPS
insight exposed
Father’s
level of
low
endangered
of insight
Father’s low levels
Bur-
injury,93
his
children,
reject
argument
we
this
his
of
merely
about a threat
dick
in 2009 that
Burdick determined
well.
jury
metaphysical
injury,94
reasonable
of
Dr.
insight,
Father had low levels
a firm
could
have formed
belief
Father’s in-
Ryan agreed but noted that
un-
problem
conviction that Father’s
with
Bur-
improved by
somewhat
2011.
sight
derstanding
his behavior affected
how
that,
general, being
in
low
dick testified
his
well-be-
endangered
others
children’s
could
an endan-
functioning
insight
in
ing.95
well-being of one’s
gering effect on the
However,
Accordingly,
Dr.
on our
Ryan
based
review
children.
clarified
endangers
applying
appropriate
of
entire record and
insight
that whether
lack
review,
of
hold
the evi-
proble-
standard
we
depends
one’s children
what
in-
is,
hostility
factually
use
illegal drug
dence of Father’s
matic behavior
of his
problematic
support
of a
behav-
sufficient
termination
being
example
an
(E)
rights
of
en-
under subsection
be-
insight
parental
which lack
could
ior about
Ryan’s
noted
factfinder could
danger
report
a child. Dr.
cause
reasonable
behavior,
everyone
have formed a firm belief or conviction
problematic
has
in
use
or consume
behavior toward others
drugs
that Father did not
alcohol,
functioning
be-
front of his children or
low
problematic
and that Father’s
impulse
control en-
insight
haviors
with which
levels
were
disorders
well-being.96
dangered
been
children’s
diagnosed.
CH.,
C.H.,
at 28-29.
92.
at 28-29.
95. See
89 S.W.3d
See
89 S.W.3d
Boyd,
93. See
727 S.W.2d
161.001(1)(E);
§
Tex.
Ann.
96. See
Fam.Code
H.R.M., 209
at 108.
S.W.3d
94. See id.
the bus
able to take him to the
Condition of Father’s Homes
H.B.,
hospital to
until Monday,
see
Octo-
First,
points
TDFPS
to the condition of
bus,
ber
when the
which did not oper-
Missouri
Mother’s
trailer.
weekend,
ate on the
was able to. take him
scant evidence in
regarding
the record
home after
Sunday,
H.B.’s
re-
October 8
first contact
the family
MDSS’s
Instead,
lease.
evidence suggests
June 2005 is
Assessment
abra-
“6/26/05
one,
this situation
much
like the
sions, unsanitary living conditions that was
Missouri—one in
nearly
which the animals
Services
concluded
needed linked initial 30
destroyed the
while the family
home
days.” That brief
does not pro-
reference
pf
out
the home
an
period
extended
any proof
unsanitary
vide
conditions.
time and unable to return.
Further,
there is no evidence that MDSS
Furthermore,
found that A.B. was in the trailer in De-
no evidence suggests that
cember 2005 when MDSS found it to
these
same
problems
animal-related
per-
heat,
unsanitary, without
and immediately vaded
again.
Father’s home
When Porter
Instead,
threatening
to A.B.
as TDFPS visited Father on October
Father told
recognizes, the evidence shows that
already
Fa-
city
contacted the
Mother,
ther,
A.B.
not staying
pound
inability
about his
to take the ani-
their trailer at the time but had
mals anywhere
moved to
without
car. And Father
cat,
trailers that
only
met MDSS’s minimum stan- had
pet,
one
for which he had a
box, by
dards.
litter
the time his children were
10, 2008,
returned on June
the day that he
As evidence of endangerment after the
Indeed,
moved
apartment.
into his second
family
Texas,
points
moved to
TDFPS
testified that he never had more
*88
depiction
Porter’s
of the condition of Fa-
than one
in his
apartment.
animal
second
first
in
apartment
ther’s
October 2007.
although
Porter testified that
points
TDFPS also
to Cornelius’s testi-
9, 2007,
home
mony
on October
she
strong
could
that she smelled a
of
odor
a strong odor of
animal
coming
smell
animal feces
feces in
apartment
Father’s
when
from inside. Porter
that
she
testified
the fol-
visited in October 2007. We note that
lowing day,
apartment
she entered the
Cornelius also
and
said that
could feel fleas
she.
urine,
smelled an odor
biting
roaches,
of animal feces and
legs, that
saw
stains
observed
and animal excrement on that she
on
carpet
observed stains
the
floor, saw bugs
dirty
dirty
the
in areas of the
water
home
dishes in the dish-
including
freezer,
refrigerator
and the
washer. Because no evidence suggests
noticed that
ripped up.
the walls were
that
lived in
children
or visited Fa-
2007,
apartment'
ther’s
though,
October
While Porter testified that such an envi-
neither
testimony
Porter’s nor Cornelius’s
dangerous
young
ronment
is
children
about the condition of
apartment
Father’s
mouths,
put
things
who
in their
Porter
at that time is
that
evidence
the children
that
said
she did not know what the condi-
exposed
were
to harm.97
tion of
apartment was when the
Father’s
there,
children were
there is no evi- While
not mention
TDFPS does
this evi-
dence,
being
of
at
Investigator
dence
either child
Father’s
we note
TDFPS
apartment during
period.
this time
In- Cornelius
in the
second trial that
deed, the
during
apartment
evidence shows
Father was
her visits to Father’s
Monday,
not even home from
October
June 17
and June
the ehil-
Boyd,
97. See
dren were not done so for ing fall 2010 and had like one floor. But food” and trash months, apart- trial, several evidence first Cornelius of the witnesses during 2010 was ment’s condition fall the children would explain did not how exposed were evidence that that she by harmed the mess or clutter harm.101 instance, not tes- For she did observed.98 children, in the who were
tify that Next, testimony points us to the TDFPS shut, crawling were bedroom with door Perez,' apart- who described floor, access room living around on “gener- 2009 as July ment from October food,' dangerously old putting “very unclean” and ally cluttered” mouths, endangered or were food their an was not opined apartment that Father’s Therefore, like the the floor.99 trash on place “pri- for children live appropriate trial, testimony Cor- strong in the first marily very witness’s there [wa]s Also, testimony factually nelius’s is not sufficient from the litter box.” Perez odor- under subsec- litter odor endangerment evidence of noted that she detected the box (D) (E).100 January body well human odor in tion as points to the TDFPS also condition opinion apartment in our first Septem- We decided
Father’s second body odor not evi- During evidence of Father’s ber 28 to November endangerment under subsection viola- dence period, time Father received lease (E).102 (D) or And we need not decide unhealthy unsanitary living tions which odor point whether there is a pest housekeeping, and for poor conditions grounds from a box becomes litter to clean his control instructed because Perez testified termination treat it for a apartment before did not live with Father at the the children infestation, work- roach and maintenance There- time she detected the odor. in Father’s repairs ers to make refused fore, testimony Perez’s about condition floors. ap'aitment until he cleaned his apartment of Father’s is not evidence However, this evidence of the conditions *89 exposed the children were to harm.103 that during fall 2010 was not evidence apart- these existed in Father’s conditions the Accordingly, applying appropriate in June ment when the children lived there review, hold that evidence standard of we Indeed, testified July 2008. Coaxum the of Father’s homes is factu- of condition unsanitary living no that she had record of termination of ally support insufficient during apartment rights in Father’s Father’s under subsection parental conditions (D) (E) the did or a reasonable factfinder period. that time Because children because 2977709, there, A.B., long the or the 98. See knife had been whether 2010 WL at *39. it). children access to M.C., (holding Compare 99. 917 at 270 S.W.2d 161.001(1)(D), § 100. See Tex. Fam.Code Ann. legally endangerment that the evidence of 108; H.R.M., A.B., (E); at 2010 S.W.3d when, part, food off sufficient children ate 2977709, WL at *39 . garbage), out with In re floor and J.R., 558, (Tex.App.-Houston 171 S.W.3d Boyd, See at 533. 101. 727 S.W.2d 2005, pet.) (holding no [14th Dist.] endangerment factually insuf- evidence of A.B., See 2010 WL *40. when, part, witness not state ficient floor, Boyd, what of knife found on the how 103. See 727 S.W.2d at kind trial, a firm belief or in the not have formed troduced second there could is no evidence, just children as not in present that the were there was conviction first trial, were unsanitary exposed when the children in Father’s homes harm.107 Without reported were evidence the chil- conditions exposed any dren danger stem- and 2011 that the children were or activities,108 ming from Father’s online endangered by the conditions that existed this evidence is not of endangerment evidence the home in did live in June (D) (E).109 under subsection or July 2008.104 5. Conclusion 4. Other Evidence Applying the appropriate standard of re- a. Rains view, the volume of disputed evidence—set Rains, The evidence whom shows extensively forth above—that reasonable as girlfriend identified his factfinder could not have credited in favor roommate, committing was convicted of (D) (E) findings subsection or is so elderly after bodily injury person to an significant that a could factfinder not rea- while injuring grandmother trying her sonably formed a firm belief or con- protect daughter. testified allegations viction of truth of the (D) his children be safe around (E).110 would Father violated subsection or Rains, Perez, only other person Therefore, factually the evidence is insuffi- matter, particular who on this support cient termination (D) that she not said could determine whether parental rights under subsection or (E).111 Rains safe around sustain Accordingly, we the re- Perez never seen inter- portions Rains maining of Father’s first and sec- Without act children. evidence points. ond expose injury,
Rains would children to III. Best Interest potential Rains’s in Father’s presence apartment upon the children’s return is point, In third challenges endangerment evidence sub- under legal sufficiency and factual of the evi- (D) (E).105 section support dence the jury’s finding that it in his children’s best interest to termi-
b. Online activities parental nate rights. Because we have adult Just Father’s involvement with concluded that the evidence is factually did not factor into our decision in websites to support insufficient termination under case, (D) (E), first it does factor into our need not subsection we address *90 in this evi- support decision case.106 While new whether the evidence the jury’s dence of Father’s online activities was in- finding factually best interest is suffi- 161.001(1)(D), 161.001(1)(D), § § 104. See Tex. Fam.Code Ann. 109. Tex. See Fam.Code Ann. H.R.M., (E); (E). at 108. 209 S.W.3d 161.001(1)(D), § 105. See Tex. Ann. Fam.Code H.R.M., 108; C.H., at 110. See S.W.3d (E); Boyd, 727 at 533. S.W.2d at 28-29. S.W.3d A.B., 106. See 2010 WL at *29-30. 161.001(1)(D), § 111. See Tex. Fam.Code Ann. See id. at 107. *29. (E). Boyd, See 727 S.W.2d Intervention However, of holding because a IV. cient.112 the support evidence to legally insufficient claims that point, In his fourth finding would entitle best interest jury’s by allowing G.H. and the trial court erred afforded relief than he is greater in the suit J.H. to intervene termination holding, (1) we insufficiency our factual not have been able they under should after trial court gain standing the evi- the contention that address his shall rights parental wrongfully terminated support the legally is insufficient to dence (2) vio- by parents intervention foster finding.113 jury’s best interest we parent’s process rights. As lates a due sup- evidence Much same previously explained, first finding interest in the the best ported of review for determin- standard into dur- evidence trial was also admitted improperly ing whether the trial court the ing Specifically, the second trial.114 to strike intervention denied motion exhibited that the children evidence shows of To determine abuse discretion. A.B., especially who developmental delays, court its discre- whether trial abused needs.” Additional- “special is considered tion, we the must decide whether trial ability questions evidence Father’s ly, the any court acted without reference healthcare, adequate minimally provide in other guiding principles; rules or nutrition, physical home envi- words, and a safe we decide the act must whether ability as his to under- arbitrary ronment well or unreasonable. needs. The evidence his children’s stand Legislature passed Texas In Rains, very well may implicating also shows laws specifically who new upon ability parents heard in home the children’s foster to be live chil- regarding trial court their foster return, history has a of assaultive conduct. have two ave- parents dren. Foster now Additionally, evidence shows First, foster nues the courthouse. physical and mental children demonstrated bring original can an suit affect- parents they while were in foster improvement relationship ing parent child care, provide the chil- that J.H. and G.H. (SAPCR) if child with the has lived environment, safe, nurturing dren parents “for at least foster [twelve] call J.H. and G.H. [ninety] ending months more than “[Djaddy,” J.H. “[Mjommy” and and that days filing the date of the preceding like to the children adopt and G.H. would petition.” Tex. FarmCode Ann. rights parental if Father’s are terminated. 102.003(a)(12)(Vernon § Supp.20[12]). Therefore, in the viewing evidence Second, parents who have not foster we judgment, most favorable to the light at least possession child for hold, opinion, as we in our first ninety days before twelve months legally support the evidence is sufficient may file suit intervene nevertheless We jury’s finding.115 best interest with stand- brought SAPCR someone if point. ing parents the foster can demon- overrule Father’s third *91 263.307(b); § Fam.Code Ann. Tex.R.App. 112. See P. 47.1. 115.See Tex. 573; A.B., J.P.B., 180 at 2010 WL S.W.3d A.B., 2010 WL at *41. 113. See 2977709, at *42. 263.307(b) § Fam.Code Ann. 114. See Tex. 2008); A.B., (West WL *42. suit, have had substantial in vening pending
strate where the rela- tionship already disrupted. contact with the child. Id. at In the past 102.004(b). case, latter may intervention § enhance ability the trial adjudicate court’s
The past substantial contact test es- cause in the best interest of the child. 102.004(b) by tablished section for foster Other courts have evaluated in cases was a parent intervenors dramatic which foster parents sought to intervene change from the intervenor traditional in termination proceedings. In one standing requirement. For several case, a seventeen-month-old child had years, Supreme Texas Court case of lived with parents the foster for fourteen Mendez v. juris- Brewer dominated the months of her life. parents The foster parents prudence when foster could adopt decided to the child if the in proceedings. intervene termination parental rights mother’s were terminat- Mendez, In parents planning foster that, ed. The appellate court held under adopting parental if rights child 102.004, section the trial court did not sought were terminated to intervene in a abuse its discretion allowing the fos- termination suit. The court looked to ter parents to intervene in the termi- section 11.03 Texas Fam- [former] nation suit because the parents foster Code, ily which ... “A read: suit affect- had had past substantial contact with ing parent-child relationship may be the child. brought by any person with an interest parents foster in this case had statute, in the child.” Based on this two avenues to be heard the court— in Mendez “justicia- court established a either petitioners intervenors. ble interest” for standard intervenors. N.L.G. came to the foster parents Applying par- this standard the foster April 2005 continuously remained ents, the Mendez held that court their with them through termination hear- wholly contingent interest was on the ing Therefore, in September 2006. un- outcome of the termination in- suit—an 102.003(a)(12), der section the foster justicia- terest that was too to be weak parents brought could have an original ble. parent-child suit affecting the relation- however, Mendez, Since the Texas ship concerning N.L.G. Legislature 102.004, has passed section case, parents The foster this howev- which, above, as discussed creates the er, chose the second method available new, past more relaxed substantial con- them as intervenors in the suit brought establishing tact test intervenor intervenors, by the State. As the foster Thus, standing in party SAPCR. parents had provide the trial court who cannot a SAPCR under the file grounds finding of substantial “justiciable Mendez interest” standard past contact with N.L.G. At the time may nonetheless intervene in a suit filed strike, the hearing on Sarah’s motion to qualified aby party under the statutory the child with the par- had lived foster past “substantial contact” standard. life, ents for excluding her entire policy Sound supports the relaxed following first seven days her birth. standing requirements. sig- There is a Furthermore, foster parents had be- filing nificant difference between a suit come emotionally attached to the child which could disrupt adopt the children’s rela- and had her if decided Sarah’s tionship with their parents, parental rights and inter- terminated. The *92 688 PMC, period taint the of there is no the trial court aware made
intervenors
twenty one-months that G.H.
more than
through their motion to
facts
of these
in-
fostered the children before
and J.H.
that mo-
hearing
and
intervene
the
tervening in the termination suit. We hold
tion.116
its discre-
the trial court did not abuse
of the
argues that our reversal
all
time
chil-
by considering
tion
the
the
first
order should somehow
termination
have been with G.H. and J.H. and
dren
a half
all but three and
months
cancel out
allowing the intervention.
the
have
time that
children
of the
process argument,
to Father’s due
As
J.H.;
is,
he ar-
with G.H. and
been
Tyler’s analysis
we
our
court in
find
sister
not have
the trial court should
gues that
instructive:
period
eighteen-month
the
considered
parents]
that [former]
contend
[The
8, 2009, when the first
trial
from June
11
15 of the
Chapters
T[exas]
and
Fam-
9, 2010, when G.H.
began, until December
constitutionally
ily]
violate the
C[ode]
intervened,
deciding
the stand-
and J.H.
family
protected right
integrity
of the
ing issue.
they
party
as
allow a
other than
insofar
province
We
invade the
decline
the state to seek
termination of
legislature by injecting
requirements
new
parents’ parental rights.
natural
reject
also
into the statute.117 We
right
marry,
The
to establish
this
as
dis-
arguments portraying
case
bring up
and
children is a funda-
home
parents
parents
and foster
pute between
liberty
protected by
mental
interest
policy
acting in the
neglecting
of
par-
The natural
fourteenth amendment.
children’s best interest.118
liberty
in the
ents’ fundamental
interest
argument
ignores the
Finally, Father’s
care, custody
management
their
of
naming
in the
trial
trial court’s order
first
child is
lost because
have
permanent
man-
TDFPS as
children’s
tempo-
lost
parents
model
been
(PMC)
agement conservator
relat-
their child to the state.
rary custody of
of
findings
appointment
ed
that “the
either
compelling governmental
interest
A
parent
Managing
Conservator would
inter-
justify
must exist in order
state
in the
interest
not be
best
of
parent-child
with the
relation-
ference
appointment
significant-
would
ship.
appellants
The
maintain
ly
physical health or emo-
impair [their]
compelling
there is no
state interest that
development”
appoint-
tional
allow
other than the state
parties
would
ment
TDFPS
be in the children’s
parental rights.
to seek termination
findings
Neither the
nor the
best interest.
state interest at stake
compelling
designation of
the children’s
TDFPS as
proceed-
parental rights
termination
opinion.119
PMC
our first
was disturbed
parens
pre-
is a
interest in
ings
patriae
placed the children
Because TDFPS
serving
promoting
the welfare of
undoubtedly
G.H.
J.H.’s
them in that
It
true
care
left
child.
preserva-
being
parens patriae interest favors
designated
foster home after
their
N.L.G.,
N.L.G.,
which by a clear convinc- adversaries point, argues In fifth his The par- foster evidence standard. ing him erroneously trial court denied only prove required ents by cross-examine Burdick right fully child, but also the interests of the best him from her re- preventing impeaching misconduct. In this parents’ natural against Specifically, him. garding bias case, were exten- parents the natural gave that the trial court argues in an attempt TDHS sively helped by impression and violated his jury a false rearing child ca- marginal their improve right by full cross-examination redact- to a due appellants’ process pabilities. report her mention of ing from Burdick’s by proce- were not violated rights and her com- polygraph examination by F[amily] provided T[exas] money by dure ment wasted obtain- But Father ing polygraph examination. C[ode].120 granted agreed to and the trial court Rodarte, birth Fa- parents Like the “[a]ny prohibited in limine that ref- motion a jury counsel and trial appointed ther had polygraph taking erence or the results had the of appellees burden in which He there- polygraph examination.” grounds for termination proving the complain fore now of the exclusion cannot evidence. We there- convincing clear appeal.122 polygraph evidence allowing the foster fore likewise hold we overrule Father’s fifth Accordingly, intervene, violate Fa- parents point. rights process, ther’s due RodaHe, Further, unlike Father has VI. Conclusion Our appeal. successful on reversal been that the evidence is Having determined termination order removes the this second factually insufficient terminate Father’s managing parents joint conserva- foster (D) parental under subsections rights the trial court did not make tors because 161.001(1) (E) family of section code conservatorship findings in independent having points, overruled his other we Thus, exactly Father is in this order.121 court’s judgment reverse the trial re- the interven- position before for a new mand the case trial court PMC of tion—TDFPS trial. placed has them with G.H. and J.H. ANN DAUPHINOT LEE Consequently, if the intervention had even JUSTICE process, to due rights violated Father’s WALKER, DAUPHINOT, no harm. overrule Father’s can show We PANEL: MCCOY, JJ. issue. fourth 2008, Cox, 65, 14, (mem. op.); Aug. pet.) v. no 120. Rodarte 828 S.W.2d 79-80 Worth denied) 601, (citations McLendon, (Tex.App.-Tyler writ v. 847 S.W.2d 609 McLendon omitted). denied) (holding (Tex.App.-Dallas writ agreed father to the omission of D.N.C., See In re 252 S.W.3d 319 specific possession, periods of he cannot com- (Tex.2008). grant plain appeal that the failure to him error). specific terms is reversible A.S.Z., 02-07-00259-CV, 122. See In re No. (Tex.App.-Fort *2 WL J., MCCOY, opinion. dissents without IB, September
DELIVERED: *95 CELMER, Appellant
Elizabeth W.
v. McGARRY, Appellee.
Charles
No. 05-10-01133-CV. Texas, Appeals
Court
Dallas.
Aug.
Rehearing Overruled Nov.